The Children Act

by Ian Mcewan

  The opposition to the application rested on three principal arguments. That A was three months short of his eighteenth birthday, was highly intelligent, understood the consequences of his decision and should be treated as being Gillick competent. In other words, as worthy of recognition for his decisions as any adult. That refusing medical treatment was a fundamental human right and a court should therefore be reluctant to intervene. And third, that A’s religious faith was genuine and should be respected.

  Fiona addressed these in turn. She thanked counsel for A’s parents for bringing to her attention the relevant Section 8 of the Family Law Reform Act of 1969: the consent of a sixteen-year-old to treatment “shall be as effective as it would be if he were of full age.” She set out the conditions of Gillick competence, quoting Scarman along the way. She recognized a distinction between a competent child under sixteen consenting to treatment, possibly against the wishes of its parents, and a child under eighteen refusing life-saving treatment. From what she had gathered that evening, did she find A to have a complete grasp of the implications of having his and his parents’ wishes granted?

  “He is without doubt an exceptional child. I might even say, as one of the nurses did this evening, that he is a lovely boy, and I’m sure his parents would agree. He possesses exceptional insight for a seventeen-year-old. But I find that he has little concept of the ordeal that would face him, of the fear that would overwhelm him as his suffering and helplessness increased. In fact, he has a romantic notion of what it is to suffer. However …”

  She let the word hang, and the silence in the room tightened as she glanced down at her notes.

  “However, I am not ultimately influenced by whether he has or doesn’t have a full comprehension of his situation. I am guided instead by the decision of Mr. Justice Ward, as he then was, in Re E (a minor), a judgment also concerning a Jehovah’s Witness teenager. In the course of which he notes, ‘The welfare of the child therefore dominates my decision, and I must decide what E’s welfare dictates.’ That observation was crystallized in the clear injunction of the Children Act of 1989, which declares in its opening lines for the primacy of the child’s welfare. I take ‘welfare’ to encompass ‘well-being’ and ‘interests.’ I’m also bound to take into account A’s wishes. As I’ve already noted, he has expressed them clearly to me, as has his father to this court. In accordance with the doctrines of his religion derived from a particular interpretation of three passages in the Bible, A refuses the blood transfusion that will likely save his life.

  “It is a fundamental right in adults to refuse medical treatment. To treat an adult against his will is to commit the criminal offense of assault. A is close to the age when he may make the decision for himself. That he is prepared to die for his religious beliefs demonstrates how deep they are. That his parents are prepared to sacrifice a dearly loved child for their faith reveals the power of the creed to which Jehovah’s Witnesses adhere.”

  Again she stopped and the public gallery waited.

  “It is precisely this power that gives me pause, for A, at seventeen, has sampled little else in the turbulent realm of religious and philosophical ideas. It is not part of the methods of this Christian sect to encourage open debate and dissent among the congregation at large, which is referred to by them, aptly some might say, as ‘the other sheep.’ I do not believe that A’s mind, his opinions, are entirely his own. His childhood has been an uninterrupted monochrome exposure to a forceful view of the world and he cannot fail to have been conditioned by it. It will not promote his welfare to suffer an agonizing unnecessary death, and so become a martyr to his faith. The Jehovah’s Witnesses, like other religions, have a clear notion of what awaits us after death, and their predictions of the end days, their eschatology, are also firm and very detailed. This court takes no view on the afterlife, which in any event A will discover, or fail to discover, for himself one day. Meanwhile, assuming a good recovery, his welfare is better served by his love of poetry, by his newly found passion for the violin, by the exercise of his lively intelligence and the expressions of a playful, affectionate nature, and by all of life and love that lie ahead of him. In short, I find that A, his parents and the elders of the church have made a decision which is hostile to A’s welfare, which is this court’s paramount consideration. He must be protected from such a decision. He must be protected from his religion and from himself.

  “This has been no easy matter to resolve. I have given due weight to A’s age, to the respect due to faith and to the dignity of the individual embedded in the right to refuse treatment. In my judgment, his life is more precious than his dignity.

  “Consequently, I overrule the wishes of A and his parents. My direction and declaration are as follows: that the agreement to blood transfusion of the first and second respondents, who are the parents, and the agreement to blood transfusion of the third respondent, who is A himself, are set aside. Therefore it will be lawful for the applicant hospital to pursue the medical treatments of A they regard necessary, on the understanding that these may entail the administration of blood and its products by transfusion.”

  IT WAS ALMOST eleven o’clock when Fiona set off to walk home from the Courts of Justice. At this hour, the gates were locked and it wasn’t possible to cut through Lincoln’s Inn. Before turning up Chancery Lane she went a short way along Fleet Street to an all-night convenience store to buy a ready-made meal. The night before, it would have been a bleak mission, but she was feeling almost carefree, perhaps because she hadn’t eaten properly in two days. In the cramped, over-lit shop, the garish packaged goods, the explosive reds and purples and starburst yellows, throbbed on the shelves to the beat of her pulse. She bought a frozen fish pie and weighed up various fruits in her hand before deciding. At the checkout she fumbled with her money, spilling coins onto the floor. The nimble Asian lad working at the till trapped them neatly with his foot, and smiled protectively at her as he put the money in her palm. She imagined herself through his eyes as he took in her exhausted look, ignoring or unable to read the tailored cut of her jacket, seeing clearly one of those harmless biddies who lived and ate alone, no longer quite capable, out in the world far too late at night.

  She was humming “The Salley Gardens” as she went along High Holborn. The fruit and the dense hard package of her supper swinging in its carrier bag against her leg were a comfort. The pie could cook in the microwave while she prepared for bed, she would eat in her dressing gown in front of a rolling-news channel, and then nothing would stand between her and sleep. No chemical prompt. Tomorrow was a high-end divorce, a famous guitarist, an almost-famous wife, a torch singer with an excellent solicitor, wanting some large portion of his twenty-seven million. Candyfloss compared to today, but the press interest would be just as intense, the law just as solemn.

  She turned into Gray’s Inn, her familiar sanctuary. It always pleased her, the way the city’s traffic rumble died away as she went deeper in. A gated community of a historical sort, a fortress of barristers and judges who were also musicians, wine fanciers, would-be writers, fly fishermen and raconteurs. A nest of gossip and expertise, and a delightful garden still haunted by the reasonable spirit of Francis Bacon. She loved it here and never wanted to leave.

  She entered her building, noted that the time switch for the lights was on, walked up toward the second floor, heard the usual jagged creak on the fourth and seventh stairs and on the final run to her landing saw everything and immediately understood. Her husband was there, just getting to his feet, a book in his hand, and behind him against the wall, his suitcase had been a kind of seat, and his jacket was on the floor beside his briefcase, which was open, with papers spilling out. Locked out, working while waiting. And why not? He looked rumpled and irritated. Locked out and waiting a very long time. Clearly not back for fresh shirts and books, not with his suitcase there. Her immediate thought, a gloomy and selfish one, was that now she would have to share her single-portion supper. And then she thought she wouldn’
t. She’d rather not eat.

  She came up the last few stairs onto the landing, saying nothing as she reached for her keys, the new keys, from her bag, stepped around him and went to the door. It was for him to speak first.

  His tone was querulous. “I’ve been phoning you all evening.”

  She unlocked the door and walked in without looking back and went into the kitchen, dumped her stuff on the table and paused there. Her heart was beating far too hard. She heard his bad-tempered breathing as he brought in his luggage. If there was to be a confrontation, which she didn’t want, not now, the kitchen was too confined a space. She took her briefcase and went quickly into the sitting room, to her usual place on the chaise longue. Spreading a few papers around where she sat was a form of protection. Without them she would not know what to do with herself.

  The rumble of Jack towing his suitcase further along the hall and into their bedroom seemed to her like an opening move. And an insult. By force of habit, she pulled off her shoes, then took up a document at random. The guitarist had a pleasantly appointed villa in Marbella. The torch singer rather fancied it for herself. But he had acquired it before the marriage, from his previous wife, in return for vacating the family home in central London. And that previous wife had come by it in a divorce settlement with her first husband. Irrelevant, Fiona couldn’t help herself ruling.

  At a creak of a floorboard she glanced up. Jack paused in the doorway before heading for the drinks. He wore jeans and a white shirt unbuttoned to his chest. Did he imagine he was desirable? She noticed he hadn’t shaved. Even from across the room, his bristles showed white and gray. Pathetic, they were both pathetic. He poured himself a Scotch and raised the bottle in her direction. She shook her head. He shrugged and crossed the room to his chair. She was a spoilsport, no sense of occasion. He sat down with a homely sigh. His chair, her chair, married life again. She looked at the paper in her hand, the wife’s narrative of the guitarist’s desirable world, impossible to take in. There was silence while he drank and she stared across the room at nothing in particular.

  Then he said, “Look, Fiona, I love you.”

  After several seconds she said, “I’d rather you slept in the spare room.”

  He lowered his head in assent. “I’ll move my case.”

  He did not get up. They both knew the vitality of the unsaid, whose invisible spirits danced around them now. She had not told him to keep out of the flat, she had tacitly agreed he could sleep there. He had not told her yet whether his statistician had thrown him out or he had changed his mind or indulged sufficient ecstatic experience to see him to his grave. The change of locks had not been touched on. He was probably suspicious of her being out so late. She could barely stand the sight of him. What was required now was a row, one with several chapters stretching over time. There might be some rancorous digressions, his contrition might come wrapped in complaints, it might be months before she would allow him in her bed, the ghost of the other woman might linger between them forever. But they would likely find a way of being back, more or less, with what they once had.

  Contemplating the mighty effort involved, the predictability of the process, wearied her further. And yet she was bound to it. As to a contract she must fulfill to write a boring, necessary legal manual. She thought she would like a drink after all, but that might have looked too much like a celebration. She was a long way from being reconciled. Above all, she could not bear to hear again that he loved her. She wanted to be in bed alone, on her back in the dark, biting into some fruit, letting the remains drop to the floor, then passing out. What was to stop her? She stood and began to gather up her papers, and it was then that he began to speak.

  It was a torrent, part apology, part self-justification, some of which she had heard before. His mortality, his years of complete fidelity, his overwhelming curiosity about how it would be, and almost as soon as he left that night, as soon as he arrived at Melanie’s place, he realized his mistake. She was a stranger, he didn’t understand her. And when they went into her bedroom …

  Fiona raised a warning hand. She didn’t want to hear about the bedroom. He paused, considered, and continued. He was a fool, he realized, to be driven by sexual need and he should have turned on his heel that night, when she opened her door to him, but he was embarrassed and felt bound to continue.

  Clutching her briefcase against her stomach, Fiona stood in the center of the room, watching him, wondering how to stop him. It amazed her that even now, with the high marital drama in its opening scene, the Irish song continued to turn in her mind, quickening to the rhythm of Jack’s speech, and sounding both mechanical and festive, as though cranked out by a street organ grinder. Her feelings were in confusion, blurred by fatigue and hard to define as long as her husband’s plaintive words swept over her. She felt something less than fury or bitter resentment, and yet it was more than mere resignation.

  Yes, Jack said, once he arrived at Melanie’s flat he felt stupidly obliged to go on with what he had started. “And the more trapped I felt, the more I realized what an idiot I was to risk everything we have, everything we’ve made together, this love that—”

  “I’ve had a long day,” she said as she crossed the room. “I’ll put your suitcase in the hall.”

  She stopped by the kitchen to take an apple and a banana from her shopping on the table. Having them in her hand as she went toward the bedroom brought back her relatively happy walk home from work. She had felt the beginnings of some ease. Hard to recapture now. She pushed open the door and saw his suitcase standing upright and prim on its wheels by the bed. Then it came to her plainly what she felt about Jack’s return. So simple. It was disappointment that he had not stayed away. Just a little longer. Nothing more than that. Disappointment.

  Four

  IT WAS HER impression, though the facts did not bear it out, that in the late summer of 2012, marital or partner breakdown and distress in Great Britain swelled like a freak spring tide, sweeping away entire households, scattering possessions and hopeful dreams, drowning those without a powerful instinct for survival. Loving promises were denied or rewritten, once easy companions became artful combatants crouching behind counsel, oblivious to the costs. Once neglected domestic items were bitterly fought for, once easy trust was replaced by carefully worded “arrangements.” In the minds of the principals, the history of the marriage was redrafted to have been always doomed, love was recast as delusion. And the children? Counters in a game, bargaining chips for use by mothers, objects of financial or emotional neglect by fathers; the pretext for real or fantasized or cynically invented charges of abuse, usually by mothers, sometimes by fathers; dazed children shuttling weekly between households in coparenting agreements, mislaid coats or pencil cases shrilly broadcast by one solicitor to another; children doomed to see their fathers once or twice a month, or never, as the most purposeful men vanished into the smithy of a hot new marriage to forge new offspring.

  And the money? The new coinage was half-truth and special pleading. Greedy husbands versus greedy wives, maneuvering like nations at the end of a war, grabbing from the ruins what spoils they could before the final withdrawal. Men concealing their funds in foreign accounts, women demanding a life of ease, forever. Mothers preventing children from seeing their fathers, despite court orders; fathers neglecting to support their children, despite court orders. Husbands hitting wives and children, wives lying and spiteful, one party or the other or both drunk, or drug-addled, or psychotic; and children again, forced to become carers of an inadequate parent, children genuinely abused, sexually, mentally, both, their evidence relayed on-screen to the court. And beyond Fiona’s reach, in cases reserved for the criminal rather than the family courts, children tortured, starved or beaten to death, evil spirits thrashed out of them in animist rites, gruesome young stepfathers breaking toddlers’ bones while dim compliant mothers looked on, and drugs, drink, extreme household squalor, indifferent neighbors selectively deaf to the screaming and careless or ha
rd-pressed social workers failing to intervene.

  The work of the Family Division went on. It was an accident of the listings that so much marital conflict came Fiona’s way. Pure coincidence that she was in conflict herself. It was not usual in this line of work to be sending people to prison, but all the same, she thought in idle moments that she could send down all those parties wanting, at the expense of their children, a younger wife, a richer or less boring husband, a different suburb, fresh sex, fresh love, a new worldview, a nice new start before it was too late. Mere pursuit of pleasure. Moral kitsch. Her own childlessness and the situation with Jack shaped these daydreams and, of course, she was not serious. Still, she buried deep in a private mental domain, but never let it affect her decisions, a puritan contempt for the men and women who pulled their families apart and persuaded themselves they were acting selflessly for the best. In this thought experiment, she wouldn’t have spared the childless, or at least, not Jack. A cleansing spell in the Scrubs for contaminating their marriage in the cause of novelty? Why not?

  For life at home in Gray’s Inn since his return was quiet and strained. There had been rows, during which she discharged some bitter feelings. Twelve hours later those feelings were renewed as ardently as wedding vows, and nothing changed, the air was not “cleared.” She remained betrayed. He spiced his apologies with old complaints that she had isolated him, that she was cold. He even said late one night that she was “no fun” and had “lost the art of play.” Of all his accusations, these bothered her most because she sensed their truth, but they did not diminish her anger.

  At least he was no longer saying he loved her. Their most recent exchange, ten days ago, reiterated all they had said before, every charge, every response, every brooded-over well-turned phrase, and in a short while they fell back, weary with each other and themselves. Since then, nothing. They moved about their days, their separate business in different parts of the city, and when confined together in the apartment stepped daintily around each other, like dancers at a hoedown. They were terse and competitively polite when obliged to confer on household matters, avoided meals together, worked in separate rooms, each distracted by raw awareness through the walls of the other’s radioactive presence. Without discussing it, they ducked out of all joint invitations. Her only conciliatory move was to give him a new key.