In 1993 Sir Alan Ward presided over a case (Re E (A Minor) (Wardship: Medical Treatment)  1 FLR 386) concerning the child of Jehovah’s Witnesses who was refusing a blood transfusion which would save his life. Ward found that the 15½-year-old had not been informed by his doctors of the likely manner of his death, had little understanding of the consequences of refusing treatment and therefore lacked sufficient (Gillick) competence to make decisions regarding his treatment; the boy lacked–
any sufficient comprehension of the pain he has yet to suffer, of the fear that he will be undergoing, of the distress not only occasioned by that fear but also – and importantly – the distress he will inevitably suffer as he, a loving son, helplessly watches his parents’ and his family’s distress… I find that he has no realisation of the full implications which lie before him as to the process of dying. He may have some concept of the fact that he will die, but as to the manner of his death and to the extent of his and his family’s suffering I find he has not the ability to turn his mind to it nor the will to do so.
Ward ruled that the hospital treating the boy could carry out the transfusion, and the boy’s life was saved. When he reached 18, however, the boy was able to refuse a transfusion without the court intervening, and he died.
No doubt the boy’s death – the seemingly senseless waste of a life and human potential – was intensely distressing to Ward, and the case has also had a profound effect on the novelist Ian McEwan who has used it as the theme of his recent book, The Children Act, around which he has worked fugue-like variations. McEwan acknowledges Ward, and we can assume that Re E formed part of their conversations.
In The Children Act Ward’s role is replaced by McEwan’s creation Fiona Maye, a High Court judge in the Family Division, a distant, somewhat cold, woman who is married to the law as some women were once married to Christ. Her marriage to classicist Jack is in trouble, following Fiona’s emotional response to a difficult case involving the separation of conjoined twins (derived from another of Alan Ward’s cases, Re A (Children)  EWCA Civ 254).
Fiona is tasked with deciding whether or not to allow doctors to transfuse emblematic leukaemia patient Adam Henry, and this represents the main narrative theme of the book.
Fiona’s judgement in favour of transfusion opens up a whole new challenging, beautiful, terrifying world to Adam, whose life hitherto has been circumscribed by the dictates of his religion and the commands of the Elders. With his new lease of life he is offered freedom, the right to believe what he chooses and to think for himself; a world of learning, and wonder, and love. But in the end the jealous god who has identified Adam as a suitable victim receives His inexorable sacrifice.
McEwan’s book explores the religious dimensions of the case and the morality of the judge’s – and the law’s – intrusion into what would in other circumstances be a private decision between the believer and his god.
The Jehovah’s Witness’s duty to refuse blood or blood products is absolute, even though the doctrine was only introduced in 1945: the reductio ad absurdum of an inflexible and implacable belief which demands death as the only choice for the curable sick and injured. In return it offers fellowship, security, support for the family and freedom from the need to think for oneself or take responsibility either for a child’s death or for his recovery. This is contrasted with the rigid beliefs and gated, privileged community within which Fiona and her husband exist, and its no less absolute adherence to the paramountcy principle of the Children Act 1989 (which forms the book’s epigraph and title) and which leads no less inexorably to Fiona’s judgement.
In a secular age the willingness to sacrifice children and adults to a recent literal interpretation – probably a misinterpretation – of a text by an Iron-Age people who had no conception of blood transfusions or human biology seems like the superstitious lunacy of a community cut off from modern medical reality. But are not the rigidly defined social, cultural and legal diktats by which Fiona lives – ever conscious of her career and reputation – just another, secular, set of rules which humans devise to order their and others’ lives? Is Fiona’s fundamental rule of the child’s best interests – in origin a crude political fudge – significantly different from the Witnesses’ irrational devotion to their god’s imagined demands?
The Children Act is an intriguing novella, raising some important questions about religion, law, free will, aging and love, but it also irritates. Characterisation is thin – just enough to carry the ideas; dialogue is sketchy and often summarised; legal details are delivered as if in a journal article rather than discovered by the characters; the referenced cases are overly familiar, though no reason is given for recasting Sally Clark, victim of one of the worst miscarriages of justice in modern times, from solicitor to architect, or for clumsily turning conjoined twins Jodie and Mary into Matthew and Mark, and so on. There are some errors – Gillick competence is overtaken by the Family Reform Act 1969 at age 16, ‘Prohibited’ Steps Orders become ‘Prohibitive’, there’s some confusion between criminal and family law.
The tone is cold, distant, academic and relentlessly melancholic; the only moment of mirth is provided by a tired old joke at the expense of lawyers. There are some frankly weird moments, too: an apocalyptic vision of the future, the duet in the hospital, the encounter in the hotel against a Hammer Horror background of night and storm – it all reads like a strange dream, from which we shall at any moment awake into the harsh banal reality of Re E.