Professional Documents
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Francisco Estrada
and his parents but, having been resigned to death for so long, he is lost
at the prospect of life. He turns to Fiona, his neediness increasingly
verging on obsession, which Fiona struggles to handle.
The novel portrays the interplay between the secular and the religious in
the most crucial, life-changing of issues and how (in our jurisdiction at
least), the law should, and will, ultimately prevail.
McEwan's explanation of Fiona's decision-making shows a clear
understanding of the workings of the Children Act 1989, with which
McEwan himself became so familiar during his own children proceedings.
He succinctly demonstrates how in reaching her decision, Fiona must
give consideration to Adam's age, whilst showing due respect to his
faith, the dignity of the individual and the right to refuse treatment. This
decision is especially difficult given how close Adam is to his eighteenth
birthday but ultimately he is a minor and so, in the eyes of the law,
unable to make the decision for himself.
The novel raises interesting questions about the conflict between
religion and the law,Gillick competency and those tricky years when a
teenager, not quite a child, but not yet an adult, is treated as a minor. In
the background, we see the workings of a highly intelligent, professional,
childless couple and their differing regrets and desires.
McEwan's inspiration, he has explained in an essay for The Guardian,
was a dinner with a handful of judges, where he found himself "resisting
the urge to take notes" and observed how easily those present could be
mistaken for a group of novelists discussing each other's work. He later
reads a judgment of Sir Alan Ward, whose wife acted for McEwan in his
divorce, and admires it as "clean, precise, delicious". The more he
researched, he says, the more the parallels between the professions
continued to strike him.
The book is littered with references to high profile children cases from
recent years. Fiona presides over a case involving conjoined twins, and
one cannot help but draw comparisons with Re A (Children)
(Conjoined Twins: Surgical Separation) [2000] EWCA Civil 254,
heard by Ward LJ (as he then was) in the Court of Appeal with Lord
Justices Brooke and Walker. There are also striking similarities to Re
G and a link to the Sally Clark case (R v Sally Clark [2003] EWCA Crim
1020).
McEwan's writing is, like the very best judgments, well-researched,
eloquent and to the point. He understands the workings of the family
court, the internal conflict faced by family lawyers, the thought process
and legal arguments behind a judgment, and, ultimately, the fall-out
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from the decision of the court. He sympathises with the difficult position
judges find themselves in and notes how the choices "are often limited
to the lesser harm rather than the greater good".
"The law", he writes, "was at its worst not an ass but a snake, a
poisonous snake".
This book has been received by the legal community with much aplomb,
although with somewhat less enthusiasm from a handful of critics
outside of the legal sphere. It is a must-read for any family lawyer with a
passion for literature.
25/9/14
http://www.familylawweek.co.uk/site.aspx?i=ed132954
Ian McEwan
that from time to time they are stricken with reality-envy. Other
forms of authority, in the real world, seem so much more
dignified and consequential than writing fiction. The great
institutionalised authorities fascinate Ian McEwan:
in Saturday his protagonist belongs to the upper echelons of the
medical profession, in Solar he is a research scientist, in Sweet
Tooth she is an agent for MI5, and in his new novel The Children
Act Fiona Maye is a high court judge. There ought to be a book
about politics sooner or later or perhaps finance. You can hear
in the tone of McEwan's "Acknowledgments" his warm
admiration for the experts he has consulted, and his handling of
the technical detail in each of these worlds always seems
intelligent: quick to pick up on the essentials and the principles
of what's at stake, the texture of the insider's knowhow. Whether
or not it works for actual insiders what did climate change
scientists think ofSolar, or spies of Sweet Tooth? probably isn't
crucial, because insiders sometimes can't see the wood for the
trees. McEwan's bold ambition is to describe the wood: to have
his novels address what novels often shy away from the
intricate workings of institutionalised power.
His excited interest in Fiona Maye's work leaps off the page: "The
family division teemed with strange differences, special
pleading, intimate half-truths, exotic accusation fine-grained
particularities of circumstance needed to be assimilated at
speed." The novel begins one evening when Fiona's absorption
in her career is invaded by a crisis in her private life. Her
husband Jack, a professor in ancient history who has been her
faithful and loving companion, announces that he wants to
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http://www.theguardian.com/books/2014/sep/11/the-children-act-ian-mcewanreview-novel
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Ian McEwan
Ian McEwan: the law versus religious belief
The conjoined twins who would die without medical intervention, a boy who
refused blood transfusions on religious grounds The novelist on the stories
from the family courts that inspired his latest book
Podcast: Ian McEwan on The Children Act
Video: Ian McEwan on religion in the 21st century
Video: Ian McEwan on Ashya King
At one point, our host, Sir Alan Ward, an appeal court judge,
wanting to settle some mild disagreement, got up and reached
from a shelf a bound volume of his own judgments. An hour
later, when we had left the table for coffee, that book lay open
on my lap. It was the prose that struck me first. Clean, precise,
delicious. Serious, of course, compassionate at points, but
lurking within its intelligence was something like humour, or wit,
derived perhaps from its godly distance, which in turn reminded
me of a novelist's omniscience. I continued to note the parallels
between our professions, for these judgments were like short
stories, or novellas; the background to some dispute or dilemma
crisply summarised, characters drawn with quick strokes, the
story distributed across several points of view and, towards its
end, some sympathy extended towards those whom, ultimately,
the narrative would not favour.
These were not cases in the criminal courts, where it must be
decided beyond reasonable doubt whether a man is a villain or
the unlucky victim of the Crown Prosecution Service. Nothing so
black and white, nothing so noir or pulp. These stories were in
the family division, where much of ordinary life's serious
interests lie: love and marriage, and then the end of both,
fortunes querulously divided, the bitterly contested destinies of
children, parental cruelty and neglect, deathbed issues,
medicine and disease, religious or moral disputes complicating
matrimonial breakdown.
The choices for a judge are often limited to the lesser harm
rather than the greater good. When mother and father cannot
agree, the court reluctantly assumes the role of the "judicial
reasonable parent". Here, in my lap, were realistically conceived
characters moving through plausible, riveting situations, raising
complex ethical questions. If these judgments had been fiction,
they would have belonged in the tradition of moral exploration
that includes Jane Austen, Leo Tolstoy, George Eliot, Henry
James, Joseph Conrad.
Then I came across an arresting sentence. It was in the opening
paragraphs of a judgment in the court of appeal in 2000
concerning baby conjoined twins.Untreated, both would die.
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Solicitor Sally Clark with her husband outside the high court.
She was freed after her conviction for the murder of her two
baby sons was ruled unsafe by the court of appeal. Photograph:
Dan Chung for the Guardian
The Guildford Four and Maguire Seven, the Birmingham Six a
brief search on the internet will show that the list of less famous
victims of miscarriages of justice in the courts is vast. And these
are only the cases that have been successfully appealed. Then
there are those that attract baffling lenience: a cyclist who rode
extremely fast on the pavement and killed a 17-year-old
pedestrian was ordered to pay a fine, and avoided jail. Or the
punishment is weirdly harsh: a young man of my close
acquaintance was caught by CCTV cameras on the edge of a
pub brawl. He hurt no one, though he did manage to receive a
split lip. On a "joint enterprise" basis, he was punished for
offences committed by others, and for which the police hadn't
even charged him. He is currently serving a two and half year
sentence. And he was lucky the prosecution was pushing for
five to nine years. When I showed the case to a recently retired
and very senior member of the judiciary, he was dismissive: "Not
even worth a suspended sentence."
My young friend was often locked in his cell 23 hours a day in
the Isis prison at Thamesmead, an institution that boasts "a
broad-based curriculum that supports academic achievement,
vocational training" etc. He lost his freedom for the grievous
bodily harm the court accepted he did not inflict. Other
mitigating factors, including previous wrongful imprisonment,
were not addressed in the summing up. Had he been listed to
appear before another judge, he might be enjoying the company
of his partner and their baby, who was born just before he was
sent down. As Kurt Vonnegut might have murmured as my friend
was led away, so it goes.
Despite sentencing guidelines, there can be no consistency in
the courts, unless everyone stands before the same eventempered judge, as at the Day of Judgment. Perhaps this was
always part of Christianity's appeal. Until that last trump, down
here in the earthly courts brilliance and fairness must live
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legal term has it, "an anxious question". The operation went
ahead, the weaker baby died (or, as the then Archbishop of
Westminster might have put it, was judicially murdered), while
its sibling underwent extensive reconstructive surgery and
flourished.
This was a high-profile case. Elsewhere, the family law reports
are littered with routine disputes over the religious upbringing of
children. Divorcing parents find themselves with irreconcilable
differences over which "truth" their children are to be raised in.
A Jehovah's Witness mother, opposed to Christmas celebrations
because of their pagan origins, withdraws her child from the
school nativity play on religious grounds. Her estranged Anglican
husband objects. A Saudi father wants to remove his daughter
from the jurisdiction to his homeland, where she will be brought
up in his Muslim faith. The mother, a Catholic, brings a court
action but too late. An orthodox Hasidic father wants his
children raised within his close community, without access to TV,
the internet, pop music and fashion, and to leave school at 16.
His less devout Jewish ex-wife will fight him to the end for the
souls of their children.
Complex issue of religious freedom and child welfare bring these
cases to the high court and beyond, to the court of appeal.
Reluctantly, at a snail's pace, the law gets involved in the
minutiae of daily arrangements the sort of arrangements that
couples in love could settle in seconds. Judgments in the family
division tend to genuflect politely before the religious devotion
of the parties, before arriving at decisions on non-religious
grounds. Inevitably, there are differences in moral perspectives.
Is this life less important than the afterlife? The law doesn't think
so. Does God abhor homosexuality and abortion? Parliament has
decided these issues and the courts must fulfil its will. Is it right
to punish those who reject their own religion? The criminal
courts must punish the punishers.
After a judge has heard out the warring parties and comes to
settle the destinies of the children, the guiding principle will be
the opening lines of the Children Act, 1989. "When a court
determines any question with respect to the upbringing of a
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Brett and Naghmeh King, parents of five year old Ashya King,
hold a press conference in Seville, Spain. Photograph: Denis
Doyle/Getty Images
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By Christopher Booker
7:04PM GMT 14 Feb 2015
For two years, Lord Justice Munby, the head of our family courts, has
been heroically fighting to restore some semblance of justice and
common sense to our horribly secretive and corrupted child protection
system, which I have been reporting on here since 2009 as one of the
most shocking scandals in Britain today.
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Two weeks ago, Munby again made headlines when he and two other
judges in the Appeal Court magisterially tore apart a Liverpool judge,
Robert Dodds, for his handling of a case-management hearing involving
an intelligent boy, described as an over-achiever at school, who was
desperate to return to live with his mother.
In 2012, Liverpool social workers sent the boy to live with his abusive
father, who was sent to jail for assaulting him. They then placed him
miserably in 14 different foster homes. The social workers were now
considering that it might be best for him to return to his mother. But
Dodds refused to hear any evidence and, without issuing a formal
judgment or even giving his reasons, instantly ordered that the boy must
remain in care.
After highly critical rulings from the other two judges, Munby weighed in
by saying that he wished to emphasise two important points. The first
was that it is one of the oldest principles of our law, going back 400
years, that no one is to be condemned unheard. Any parent faced
with the removal of their child must be entitled to make their case to the
court; and if they wish to give evidence in answer to a local authoritys
care application, they must be permitted to do so. Secondly there is
the right to confront ones accusers, and to cross-examine any
important witness on whose evidence the local authority is relying. Judge
Doddss adoption of such a ruthlessly truncated process in this case
was fundamentally unprincipled and unfair.
Just when Munby was making these points another case came my way
which, as so often in the family courts, stood those fundamental
principles on their head. A woman in Wales, after being made pregnant
from a rape, lived for some years with the father, who continued to treat
her so violently that she eventually fled with her son to a womens
refuge. They then began living happily with a new partner by whom she
had two more sons. Because of her past involvement in violence,
however, Denbighshire social workers intervened to say that, unless she
handed over her oldest son to his father, they would also remove her
other two boys. She had no choice but to obey.
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When the middle son was two, his mother took him to her doctor to look
at a small bruise, which he said was nothing to worry about. But, on
learning of this, the social workers insisted that the boy be examined by
another doctor, who said that the injury might be non-accidental, i.e. a
sign of parental abuse. On a court order, the two boys were taken into
care, and over the following months, through several court hearings
from which the parents were excluded by their lawyers, they were
shocked at contact sessions to see both the boys displaying many cuts
and bruises (which they photographed).
Last April, the couple were summoned to a final hearing to decide their
sons future. The mother was represented by lawyers she had been
given by Womens Aid, which works closely with the local authority. As
an intelligent woman, studying for a university degree, she and her
partner arrived early at the court, for what was scheduled to be a fiveday hearing. They were armed with files of evidence and a list of
witnesses they wished to call, all of which they believed would demolish
the local authoritys case.
But the mother describes how they were astonished to be told by their
lawyers that again they would not be permitted to enter the court. Half
an hour later, the barristers emerged to say that the judge had decided
that their two boys should be placed for adoption. There was no
judgment for them to see, and no possibility of any appeal against his
decision. This Wednesday the couple will have a final goodbye session
with their sons, never to see them again.
What makes this even odder is that two months later the same judge,
Gareth Jones, made national headlines for ruling that Anglesey social
workers acted above the law in removing a nine-year-old boy from his
family without a court order. This judge is clearly capable of upholding
the law when he sees social workers acting improperly. But, since we
cannot know what happened in his other courtroom weeks earlier, we
cannot know how a planned five-day hearing came to be cut to just 30
minutes; or why those lawyers told the parents that they were not
allowed even to enter the court, let alone to give evidence. We can only
surmise what Lord Justice Munby might say were he given the chance to
pronounce on a case that seems so flagrantly to have flouted those
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same fundamental rights under the law that he was recently so insistent
must be upheld.
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