What is it like being a judge? More particularly, what is it like being a High Court judge with the responsibility of deciding matters of life and death?

Though cast as a novel, with a story to engage the reader, this is what The Children Act is really about. Its author, Ian McEwan, is a writer known for researching his novels in detail, and it shows. In addition, we have the clues scattered about in various media interviews he has given to promote the book. (More about those in a moment.) At the heart of the novel is the series of judgments which his heroine, Fiona Maye, drafts and delivers for the cases she hears as a High Court judge.

One of these cases concerns a pair of conjoined twins (McEwan uses the now rather non-PC description of “Siamese twins”), one of whom must die to save the other (or else they will both die) but whose parents, devout Catholics, cannot bring themselves to authorise such drastic intervention. Another case is about a teenage boy with Leukaemia who will die unless he receives the blood transfusion that both he and his parents, as devout Jehovah’s Witnesses, refuse on religious grounds.

A third case, though not a matter of life and death, also involves a conflict between religious and legal principles: the question is whether the daughters of a divorcing orthodox Jewish couple should get the education they need to gain a profession in the modern world, or be kept in ignorance of modern life and confined to the traditional roles of motherhood and housekeeping, as their conservative father insists.

What’s interesting about these cases is that they are substantially, and unmistakeably, based on existing legal precedents from the High Court and Court of Appeal over the last couple of decades. These judgments were given by real judges who are alive and well today and must be, to put it neutrally, flattered at their work having been so elegantly plundered for material. They include Sir Alan Ward, formerly Lord Justice Ward, a man of wit and erudition who could (probably should) write a novel or two himself; and our very own President, Sir James Munby, still very much in active service and a veritable steampump of new judgments and initiatives.

What’s the story?

Woven round the cases which Fiona Maye decides is a story about her own failing (and childless) marriage and about her unorthodox approach to the teenager in the Jehovah’s Witness case. She visits him in hospital to hear and confirm his own view of the case; and later, after she has ordered treatment for his benefit, he approaches her for help in adapting to his new lease of life without the certainties of his faith.

Though the failed marriage plot seems a bit contrived (as does a rehearsal of the Sally Clarke case and a completely irrelevant attack on the joint enterprise rule by one of Maye’s colleagues), the real theme of McEwan’s novel is the conflict between law and religion. And it’s clear which side of what he perceives as a fence McEwan himself sits.

How accurate is the portrayal of the life of a High Court judge?

This is the question some readers may ask, as they look through McEwan’s window (to adopt the design theme of this website) into the comfortable living room of Fiona Maye’s flat in Gray’s Inn, with its rare art works on the wall, its foreign rugs on the floor and its conveniently central location. Early in the book we find her sipping malt whisky as she reviews a judgment for publication in the Family Law Reports, and then has to fend off the rather aggressive interruptions of her academic husband, who wants to discuss their own marital situation. None of this is untrue to life, you might say, but the picture seems a tad generic. There are some scenes in court, but I think what the book lacks is a sense of Fiona Maye’s past. She’s now in her 50s but she must, to have got where she is now, have practiced for many years at the Bar. Yet I did not get any sense of her as having that kind of practitioner experience. No doubt a brain surgeon, reading McEwan’s earlier novel, Saturday, which features a brain surgeon, might have the same issue with the accuracy of its portrayal. This should not matter – a novel is, after all, a work of art – except that McEwan makes such a fetish of researching his subject and achieving a kind of hyperreal authenticity.

What about the judgments?

Even if McEwan had not acknowledged his pilferings from Sir Alan Ward and Sir James Munby, their source judgments would not have been hard to track down. I’ve written about this in more trainspotterish detail elsewhere: suffice it to say that

• The one about the education of the daughters of a divorced orthodox Jewish couple is based on the judgment of Sir James Munby P in In re G (Children: Religious upbringing)[2012] EWCA Civ 1233; [2013] 1 FLR 677; [2012] WLR (D) 265.
• The judgment about the conjoined twins is based on that of Ward LJ (sitting with Brooke and Robert Walker LJJ in the Court of Appeal) In re A (Children) (Conjoined Twins: Surgical Separation)[2001] Fam 147; [2001] 1 FLR 1, CA.
• The case about the Jehovah’s Witness boy with leukaemia is based on an earlier judgment of Ward J (as he then was) in Re E (A Minor) (Wardship: Medical treatment)[1993] 1 FLR 386. [Links to subscription content on ICLR or Jordans, or free via Neutral Citation to BAILII.]

But here’s the rub: if you want to read and discuss a book about the way a judge approaches cases like these, McEwan’s novel will tell you that the judge is a conscientious and careful person, who approaches the task with deep seriousness. When the book was read on Radio 4, the narrator was the actress Juliet Stevenson, whose voice and demeanour perfectly encapsulate the idea of an intelligent and thoughtful middle aged woman doing her utmost to achieve the best possible outcome. No surprises there, in other words.

But if, in fact, what you want to discuss is the scope for conflict between legal rights and religious duties, particularly where this arises in the context of medico-legal ethics, your best bet would be to read the original judgments. They are, as McEwan suspects, works of art, and science, in their own right. To that extent, the novel is a way in, perhaps, for the lay reader; but it is not the whole story.

The media reception

Media reports allow us to trace McEwan’s fascination with the work of family judges back to his own brush with the courts, when he divorced his former wife Penny Allen in 1995. Apparently, their separation became so acrimonious that she attended a court hearing in 1999 wearing a gag in protest at an injunction preventing her from talking about the case. She is reported as saying that the title of The Children Act was “provocative” because the injunction under which she was precluded from discussing her case had been made under the terms of that Act. She is quoted in The Times (£) as saying

“It is certainly a bit rich that Mr McEwan champions free speech but I am stifled and have no such freedom to defend myself, which has had a catastrophic effect on my ability to work as a writer and journalist. We don’t give interviews but he does.”

The newspaper reported all this because Ms Allen appeared, unexpectedly, and heckled McEwan at the Sunday Times Cheltenham Literature Festival last month, where he was speaking at an event to promote the novel. Sitting beside him on stage was Sir Alan Ward (no doubt to help discuss the cases which the novel features). Neither McEwan nor Ward responded to the heckling and Ms Allen was quickly “escorted from the auditorium”. Her conduct seems in retrospect rather anachronistic. A lot of those aggrieved by the decisions of family judges these days just go onto Facebook or Twitter and sound off about it, and there doesn’t seem to be much the courts are able or willing to do about it.

For the Times, though, it was a gift of a story, which may in part have been Ms Allen’s intention, though it’s hard to see what good it can have done her. Elsewhere in the press, McEwan has had an equally willing and uncritical reception.

In the Guardian, he was given a platform to promote his own book, with an article entitled “The law versus religious belief”. In it, he recorded how he had dined with a group of judges, for whom he said the collective noun was a “bench”. (Well, yes, but only when they’re sitting in court. This technical inaccuracy is typical of way his research picks up jigsaw pieces but doesn’t quite manage to fit them all convincingly together.) He recounted how they recalled and discussed each other’s judgments, just like (he thought) novelists quoting and discussing each other’s work. To settle some disputed point, Sir Alan Ward at one point took down “a bound volume of his own judgments”. That seemed an interesting detail, assuming McEwan wasn’t simply referring to a volume of law reports. Later, McEwan got hold of the volume and began to read. He was fascinated. It was this fascination that fed his desire to replicate the process of writing judgments in his novel. Judgments, he says, “form a neglected subgenre of our literature, read in their entirety by almost no one except law students – and fellow judges.” (Er, excuse me, Mr McEwan! And – probably mainly – by US.)

While the Guardian gave McEwan a platform to demonstrate how much of the novel is based on true events, the Sunday Times (£) in its profile of the novelist gave its interviewer, Camilla Cavendish, a platform to boast about her triumph in, as she put it, “changing the law” and being the person “who first opened the family courts to media scrutiny”. Having briefly mentioned McEwan and his new book, she goes on:

“I’m here because the family courts are something of an obsession of mine. Eight years ago I began to expose miscarriages of justice in which children were being wrongly removed from their families, out of sight of taxpayers, and taken into care. As a result of my campaign, in 2009 the Labour government opened the courts to the media for the first time. It’s rare to read a plot which centres on those courts.”

Well, this was news to me. So I asked my fellow commentators:

what exactly is she talking about? I am sure she must have commented on family justice in the newspaper, just as other journalists have done over the years, notably Christopher Booker in the Telegraph; and I’m sure at some point her and their efforts may have influenced the general tendency towards transparency in the family courts, though I believe the current President, Sir James Munby, has reached his present state of high enthusiasm for the idea from quite independent motives.

But what is this about the Labour government opening the courts to the media for the first time in 2009?

And in what sense was this attributable in whole or part to the efforts of Ms Cavendish? Just wondering.

You can see the replies in the comments below. In brief, there was a change in the practice of the family courts, now I think reflected in the Family Procedure Rules, permitting accredited reporters to attend court hearings that would otherwise have been held in camera, but not necessarily entitling them to report everything they heard. Whether the law needed, or should have needed to be changed, is a different matter. The presumption (and the essence of the transparency agenda of which this site is a manifestation) should be that proceedings are heard in open court unless and until the court, for good reason, and exercising proper powers, orders otherwise. But that is not the end of the matter, because proceedings must also be accessible, which requires interpretation and explanation. It does not require the sort of selective, hyperventilated reporting to which most newspapers are so prone.

That issue aside, the Sunday Times profile is frankly a bit of a love-in. In Ms Cavendish’s version, she and McEwan spend much of the afternoon congratulating each other on seeing through the failings of the justice system and spotting the unintended consequences of the Children Act 1989. Needled by her, he makes some comments about his own divorce which rather support his ex-wife’s view that it is only she who has been muzzled from speaking out. What I have since discovered, thanks to a more pro-Allen piece in the Daily Mail, is that

Sir Alan also happens to be married to Helen Ward, the celebrated and costly matrimonial lawyer, who acted for the writer in his own divorce case.

(Ah-ha! Biographers take note.) The article also claims, interestingly if true, that Ms Allen’s father, a director of social services in East Sussex, was involved in drafting the Children Act. I suspect what this really means is that he was involved in consultation, rather than drafting, but I am willing to be corrected. Reading the Mail piece (pro-Allen) after the Sunday Times piece (pro-McEwan) I felt I was attending a rehearing or appeal in the case of Allen v McEwan, in which the book, like a child of the marriage, was being treated as a litigation shuttlecock. Rather distasteful, but perhaps appropriate.

Other reviews

Suffice it to say, the press has used The Children Act to sell newspapers with as much relish as McEwan’s publicists have used the press to sell the book. The fact that the book came out just as the Ashya King case broke (Jehovah’s Witness family, 5-year-old boy, medical treatment, consent etc) was, for McEwan, lucky timing. But there have also been many serious and sensible pieces by both literary and legal reviewers, including the following:

• Carl Gardner, barrister, legal commentator, on his Head of Legal blog (” The Children Act is a fair attempt at getting inside the world of law”)
• Sam Leith, in the Literary Review: Family Matters  (“You’re witnessing a performance rather than submitting to a piece of storytelling.”)
• Daniel Johnson in Standpoint, Strange Gods and the Old Devils: “There is something holier than thou about the “secular spirit” of McEwan’s law”)
• Elspeth Thomson, Partner, David Gray LLP on Family Law (“Perhaps there is a rich vein of literature lurking in family judgments just waiting to be mined by talented writers.”)
• Ex injuria blog (“The Children Act is an intriguing novella, raising some important questions about religion, law, free will, aging and love, but it also irritates.”)
• Sarah E Green, solicitor, on Family Law Week (“Peeping behind the veil of the age-old institution that is the High Court is, for a junior family lawyer at least, a slightly voyeuristic pleasure.”)
• Latimer Lee LLP, solicitors firm, blog (” publishing a novel that examines the tension between strongly-held faith and modern medicine at the same time as Ashya King was taken out of the country by his family is a stroke of genius”.)