Art Kavanagh

Criticism, fiction and other writing

The paramount consideration: Ian McEwan, The Children Act (2014)

Just over a year ago, I wrote (in Talk about books) about two very short novels by Ian McEwan, Amsterdam and On Chesil Beach. They’re roughly the same length, though very different from each other in characterization and tone. Notwithstanding the differences, music is an important theme in both. One of the two central characters in Amsterdam, Clive Linley, is a composer who has been commissioned to write a symphony for the millennium celebrations, while Florence, in On Chesil Beach, is the founder and leader of a string quartet for which she has serious ambitions. I immediately thought of at least one other McEwan novel in which music plays a significant part and said I might write about that “before too long”. I wasn’t expecting that a whole year would pass before I’d get to it.

At a little over 200 pages, The Children Act is noticeably longer than the two books I wrote about, though it’s still quite short. The central character is Dame Fiona Maye, a judge in the Family Division of the High Court. Much of her work involves adjudicating on the divorces of extremely wealthy people — in general, the only divorce cases that make it as far as the High Court are very high value ones. Not all the parties who appear before her are well off, though, nor are all the cases she hears bitterly contested divorces.

About seven weeks before the beginning of the novel, Fiona had to decide whether to authorize an operation to separate conjoined twins. The operation would inevitably kill the weaker of the twins, who was wholly reliant on his brother’s heart and lungs, and whose brain was “severely malformed” (p. 24). But a failure to separate them would, not immediately but within six months, lead to the death of both. Fiona delivered a judgment that was upheld by the Court of Appeal and widely admired by her colleagues.

It was, of course, obvious to most of her colleagues, practitioners and interested parties what the less undesirable outcome would be, but less obvious that there was a lawful route to arriving at it, one that would not require the deliberate killing of the weaker twin. In a judgment of 13,000 words, Fiona arrived at a generally acceptable conclusion. But the case left her “squeamish about bodies, barely able to look at her own or Jack’s without feeling repelled” (p. 30). She couldn’t or didn’t talk to her husband, Jack, about this. He, alarmed or dismayed at the apparent cessation of their sex life as she approached and he passed the age of 60, told her that he wanted to have an affair, a prospect that repelled her even more. He tells her:

“… before I drop dead, I want one big passionate affair … Ecstasy, almost blacking out with the thrill of it. Remember that? I want one last go, even if you don’t. Or perhaps you do.” (p. 5)

While this conflict with Jack is continuing, a case comes before Fiona involving the refusal by a young Jehovah’s Witness of a blood transfusion. Adam Henry is just three months short of his 18th birthday. Once he reaches that age, he will have a legal right to refuse any medical treatment. In the meantime, however, he is undergoing treatment for leukaemia, and needs a blood transfusion. He and his parents, who are also Jehovah’s Witnesses, believe that blood transfusions are polluting and forbidden. The issues in this case are more clearcut than those in the earlier case involving the conjoined twins. Fiona could determine them without actually meeting Adam.

But reflecting that it would once have been quite usual for judges to speak to the children whose lives would be affected by their decisions, she suspends the hearing and goes to see Adam in hospital. He reads her a poem he’s written and plays Britten’s setting of “Down by the Salley Gardens” on the violin, which he’s recently started to learn. She points out a couple of wrong notes and asks him to play it again, this time with her singing along. Then, she goes back to court and delivers her judgment. There’s no surprise about what it is.

When a young person under 18 — even if only a few months under 18, as Adam is — refuses treatment without which s|he can be confidently expected to die, it’s almost inevitable that the court will authorize the treatment, dispensing with the young person’s consent. Under the Children Act 1989, the welfare of the child is the paramount consideration. That’s to say, it outweighs everything else. It’s only in very extreme circumstances that a child’s “welfare” might require that s|he be allowed to die though treatment is possible, or that — like the weaker conjoined twin — he be actively killed by steps primarily intended to save the life of his brother.

So, Fiona’s decision in Adam’s case is expected, predictable, even predetermined. It’s difficult to see how it could have gone otherwise, and most observers would have considered it highly undesirable that it should have done so. In cases concerning the medical or surgical treatment of minors (which, of course, are not the only cases which come before her) Fiona specializes in crafting considered, elegant, judicious, well argued decisions that end up exactly where informed observers expect them to. She begins her judgment as to the education of the two daughters of an estranged couple, members of the Chareidi Jewish community by quoting Lord Justice Munby, who said that the “infinite variety of the human condition precludes arbitrary definition” (p. 17). She “devoted several hundred words to a definition of welfare, and then a consideration of the standards to which such welfare might be held” (p. 15).

Naturally, Fiona wishes to make it clear that these children are being seen and treated by the legal system as unique individuals: there can be no question of subjecting them to a one-size-fits-all type of justice. However, in a case like Adam Henry’s, the “infinite variety of the human condition” can’t make any real difference to the issue before the court: the requirements of his “welfare” would be no different if he’d never written a poem or begun to learn the violin, or if his parents’ objections to blood transfusions had been based, not on their religion but on, say, a baseless prejudice against science and medicine.

So, Fiona’s hospital visit wasn’t essential to her reaching a decision. The fact that she went to see Adam has uncomfortable repercussions for her. Following the judgment and his treatment, Adam, his health steadily improving, wants to stay in contact with her. When she goes on circuit, he walks a long way in heavy rain to get to the judges’ grand but badly heated accommodation, Leadman Hall. Having persuaded him that he should go to his aunt in Birmingham and given him money for the fare, she impulsively kisses him and immediately begins to feel that she’d taken a senseless risk. What if the other judge on circuit, or her clerk, had seen her?

Judges are obliged to keep a proper distance from parties appearing (or who have appeared) before them. In this case, it could be argued that it doesn’t matter: the case may have been contentious in form, with counsel for the hospital, the parents and Adam (and his guardian), arguing different, conflicting positions, but it was not in substance a typically contentious case. Nevertheless, Fiona avoids any further communication with Adam.

There’s an amusing sense that clerks and service workers — Leadman Hall has a butler — are there in part to act as a check on the judges’ conduct, their watchful presence ensuring the appropriate restraint and decorum.

She and the silk who represented the hospital, Mark Berner, are due to open a concert in Gray’s Inn at Christmas, she playing the piano, he singing tenor. It’s an amateur event but part of the audience regularly attend the Wigmore Hall, and had exacting expectations.

Here, even though there would be wine beforehand and the general atmosphere, at least outwardly, would be forgiving, standards were punitively high for an amateur affair. (p. 178)

Just before the concert starts, a judicial colleague tells Fiona something — the reader doesn’t yet know what — that affects her performance, which is very warmly received. Instead of the planned encore, she starts to play “Down by the Salley Gardens”, momentarily taking the tenor by surprise. But though he wasn’t expecting it, it was a piece that they’d rehearsed. The audience responds with a standing ovation but Fiona is unable to stay to receive their congratulations on her performance. She goes home in the rain to confirm what she has been told. Adam’s cancer returned. Having turned 18 in the meantime, he was now legally entitled to refuse treatment. He did so, and died.

Fiona feels that a large part of the blame for the boy’s death belongs to her:

There, in court, with the authority and dignity of her position, she offered him, instead of death, all of life and love that lay ahead of him. And protection against his religion. Without faith, how open and beautiful and terrifying the world must have seemed to him. (p. 212)

He had needed something to replace the certainty, the reassurance provided by the rules of his religion.

And believing he could get it from a woman in her sixtieth year who had risked nothing in life beyond a few reckless episodes in Newcastle a long time ago. She should have been flattered. And ready. (p. 212)

Before she had gone to the concert hall, her husband had been playing Keith Jarrett’s album Facing You (1972). This was Jarrett’s first solo piano album for ECM, and it stands out from many of his later solo albums for that label in that the balance between composed and improvised elements is tilted more towards the composed. It was one of the small number of albums that she and Jack had listened to repeatedly during “their long-ago courtship … post-finals” (p. 192).

He admired her playing but wanted to prise her loose from the tyranny of strict notation and long-dead genius. He played her Thelonious Monk’s “Round Midnight” and bought her the sheet music. It wasn’t difficult to play. (p. 192)

Not difficult, but it didn’t sound like Monk.

She listened again, she persisted, she played what was in front of her, but she could not play jazz. No pulse, no instinct for syncopation, no freedom, her fingers numbly obedient to the time signature and notes as written. That was why she was studying law, she told her lover. Respect for the rules. (pp. 192–3)

It’s tempting to see in Fiona and Jack a version of what might have become of the young couple in On Chesil Beach if they hadn’t split up on the first night of their honeymoon. Jack is not knowledgable about classical music — “He was not a musician, his taste was strictly for jazz and blues …” (p. 205), while Fiona is serious, precise, ambitious and correct (as befits a judge). To an important extent, she takes refuge from her professional life in music: “For fifty-five minutes, they forgot about the law” (p. 191), whereas Jack doesn’t seem to need to take refuge from his.

The earlier novel’s Florence, like Fiona, takes her music seriously. As he gets older Edward becomes more easygoing, relaxed. He ends up owning “two specialist record stores, jazz and rock and roll, precarious ventures slowly being undermined by Internet shopping” (On Chesil Beach, p. 163). The reader of On Chesil Beach probably already suspects that Edward and Florence would have turned out to be more compatible than they thought, if they had stayed together. Perhaps the example of Fiona and Jack can be taken as confirmation of that.

Posted by Art on 30-May-2024.