The Children Act by Ian McEwan

Those brave writers and filmmakers who turn their pens on the professions are almost always met with a pedantic chorus of eye-rolling and fact-checking: witness the discontented responses of paleontologists to Jurassic Park or of doctors to series like Casualty and ER.

Novelist Ian McEwan has fared rather better. His previous novels, Saturday and Solar were well received by brain surgeons and climate scientists respectively.

His most recent work, The Children Act takes Fiona Maye, a judge of the High Court (family division), as its subject and uses her musings on the profession to explore the moral implications of family law (although it has been pointed out, more than once, that Fiona Maye’s work in this case would not technically fall under the purview of family law).

While McEwan does nothing to dispel the spectre of pedantry from the literary depiction of lawyers, the novel has been well received by members of the profession, perhaps because McEwan exploits Maye’s methodical thought process to write several well-argued passages on the legal and moral issues that arise from her cases.

The questions Maye faces are drawn from real cases heard by the court and offer an insight into the court’s scope. Maye ponders a case involving the separation of conjoined twins. One is perfectly healthy and will be able to live a normal life on its own. The other, however, is completely dependent on the healthier twin for its survival. Surgeons advise that without separation both twins will surely die, but separation will enable the healthier twin to survive.

Maye, whilst acknowledging the cruel implications of the decision, takes comfort in the secular nature of the law to provide not just answers to difficult questions, but solid reasoning with which to back them up. This case was almost certainly inspired by Re A (Children) (Conjoined Twins: Surgical Separation) EWCA Civil 254, which dealt with the same question regarding conjoined twins. The judgment of Ward LJ shares Maye’s confidence in the law and fascination with its reasoning. “They are always anxious decisions to make,” wrote Ward LJ, “but they are invariably eventually made with the conviction that there is only one right answer and that the court has given it”.

When considering the welfare and the interests of two conjoined children, what does the court do when the welfare of one requires the death of the other? Ward LJ was forced to contend with the personal liberty of the two young patients, the rights of their parents, and the court’s obligation to ensure the children’s best interests were followed. It was necessary to consider whether separating the twins was equivalent to murder, euthanasia, or turning off an ailing patient’s life support.

Another case discussed by Maye involves the education of two Jewish schoolgirls. One parent would prefer they be educated in a single-sex school, where pupils have little beyond a Talmudic education after GCSE-level and rarely pursue higher education. The other parent would prefer to send them to a more conventional school that might lead to career opportunities outside their faith. Here, McEwan draws on Munby LJ’s judgment in Re G (Education: Religious Upbringing) EWCA Civ 123. In this case, Munby LJ considered the problems arising from both defining and then pursuing the interests of the children, whilst also respecting the religious liberty of their parents.

In contemplating the best interests and welfare of the children, Munby LJ took it upon himself to look to society at large to find what it meant to live “a good life”. Munby LJ and commentators have not failed to point out the irony in this, as British society seems to value liberty and tolerance even to the extent that it tolerates subgroups within it which hold intolerant and illiberal views. Nevertheless, Munby LJ found that the children’s welfare was best accounted for by growing up in a less socially-isolating environment and sided with their mother, who wanted to give them a more secular education.

The Children Act explores the nuances of case law to pose uneasy questions about the intersection of the private sphere of the family and the somewhat more public realm of the law.