A novelist enters the Family Division

12 September 2014 by Rosalind English

71BL6-VNgqL._SL1500_In his prolific career, writer Ian McEwan has brought us into the minds of physicists, neurosurgeons, conductors,  cultural and cold war spies and even stalkers. His most recent triumph is to have stepped deftly into the life of a High Court judge in the Family Division.

The Children Act is a short novel of great subtlety and tenderness. In his acknowledgements he says he has drawn on a “superbly written judgment” by Sir James Munby evaluating a child’s best interests in a dispute over ultra-orthodox education of the child of estranged Jewish parents (see Karwan Eskerie’s post on this case). One can see how McEwan was inspired by the judge’s nuanced approach, in which he sought to balance the significance of social and familial links as against an individual’s wellbeing; after all, a novelist’s job is to explore the nature of unhappiness. How irresistible then is an institutional figure whose very job it is to determine happiness and its opposite?

So here we have McEwan’s narrator, 59 year old Fiona Maye, childless and on the edge of marital breakdown, tasked with the business of assessing how  each unhappy family is unhappy in its own way. As Kate Kellaway says in her review,

One cannot help thinking that [the author] could have been an ace family lawyer, with his forensic intelligence and command of moral nuance. He echoes legal language plausibly too, and his deft in his journalistic ability … to weave debate into the narrative (passing references to Syria and the Leveson inquiry situate us in time).

There are no spoilers in this review but I hope I can impart and celebrate McEwan’s admirable grasp of quite what a difficult exercise it is for an adult stranger to determine what is in the “best interests” of a child where the way of life in dispute is not generally accepted by society as normal or modern, and the child in question is a highly intelligent individual months off his majority. The outrage that we all may feel at strange minority groups rejecting freedom on their children’s behalf may well have to be tempered when the child in question is clearly “Gillick competent”. Deluded though they may be, the protection offered by the community they find themselves in may count for more in the end than the autonomy offered by the secular modern world outside. Of course if the end is inevitable death for the patient, that seems a hollow statement indeed. But McEwan’s novel deals with precisely this conundrum, and one is left wondering, at its conclusion, whether kindness, which it is the task of the family court to assess, determine and then enforce, is something to be grabbed off the shelf. The principles that inform our current approach to a child’s best interests may render the ultimate adjudicator of that decision just as prone to guilt and regret as the ideologies that bring these cases into the Family Court in the first place.

Related reading:

 

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Categories


UKHRB on Twitter


Law Pod UK on Twitter


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Free email updates


Enter your email address to subscribe to this blog for free and receive notifications of new posts by email.

Join 74,875 other subscribers

%d bloggers like this: