The Children Act Read online

  To which Judith responded huskily that nothing denigrated a person, boy or girl, more than the denial of a decent education and the dignity of proper work; that all through her childhood and teenage years she had been told that her only purpose in life was to run a nice home for her husband and care for his children—and that too was a denigration of her right to choose a purpose for herself. When she pursued, with great difficulty, her studies at the Open University, she faced ridicule, contempt and anathemas. She had promised herself that the girls would not suffer the same limitations.

  The opposing barristers were in tactical agreement (because it was plainly the judge’s view) that the issue was not merely a matter of education. The court must choose, on behalf of the children, between total religion and something a little less. Between cultures, identities, states of mind, aspirations, sets of family relations, fundamental definitions, basic loyalties, unknowable futures.

  In such matters there lurked an innate predisposition in favor of the status quo, as long as it appeared benign. The draft of Fiona’s judgment was twenty-one pages long, spread in a wide fan facedown on the floor, waiting for her to take it up, a sheet at a time, to mark with soft pencil.

  No sound from the bedroom, nothing but the susurrus of traffic gliding through the rain. She resented the way she was listening out for him, her attention poised, holding its breath, for the creak of the door or a floorboard. Wanting it, dreading it.

  Among fellow judges, Fiona Maye was praised, even in her absence, for crisp prose, almost ironic, almost warm, and for the compact terms in which she laid out a dispute. The Lord Chief Justice himself was heard to observe of her in a murmured aside at lunch, “Godly distance, devilish understanding, and still beautiful.” Her own view was that with each passing year she inclined a little more to an exactitude some might have called pedantry, to the unassailable definition that might pass one day into frequent citation, like Hoffmann in Piglowska v. Piglowski, or Bingham or Ward or the indispensable Scarman, all of whom she had made use of here. Here being the limp, unperused first page hanging from her fingers. Was her life about to change? Were learned friends soon to be murmuring in awe over lunch here, or in Lincoln’s or Inner or Middle Temple, And then she threw him out? Out of the delightful Gray’s Inn flat, where she would sit alone until at last the rent, or the years, mounting like the sullen tidal Thames, swept her out too?

  Back to her business. Section one: “Background.” After routine observations about the family’s living arrangements, about residence of the children and contact with the father, she described in a separate paragraph the Haredi community, and how within it religious practice was a total way of life. The distinction between what was rendered to Caesar and what to God was meaningless, much as it was for observant Muslims. Her pencil hovered. To cast Muslim and Jew as one, might that seem unnecessary or provocative, at least to the father? Only if he was unreasonable, and she thought he was not. Stet.

  Her second section was entitled “Moral differences.” The court was being asked to choose an education for two young girls, to choose between values. And in cases like this one, an appeal to what was generally acceptable in society at large was of little help. It was here she invoked Lord Hoffmann. “These are value judgments on which reasonable people may differ. Since judges are also people, this means that some degree of diversity in their application of values is inevitable …”

  Over the page, in her lately developing taste for the patient, exacting digression, Fiona devoted several hundred words to a definition of welfare, and then a consideration of the standards to which such welfare might be held. She followed Lord Hailsham in allowing the term to be inseparable from well-being and to include all that was relevant to a child’s development as a person. She acknowledged Tom Bingham in accepting that she was obliged to take a medium- and long-term view, noting that a child today might well live into the twenty-second century. She quoted from an 1893 judgment by Lord Justice Lindley to the effect that welfare was not to be gauged in purely financial terms, or merely by reference to physical comfort. She would take the widest possible view. Welfare, happiness, well-being must embrace the philosophical concept of the good life. She listed some relevant ingredients, goals toward which a child might grow. Economic and moral freedom, virtue, compassion and altruism, satisfying work through engagement with demanding tasks, a flourishing network of personal relationships, earning the esteem of others, pursuing larger meanings to one’s existence, and having at the center of one’s life one or a small number of significant relations defined above all by love.

  Yes, by this last essential she herself was failing. The Scotch and water in a tumbler at her side was untouched; the sight of its urinous yellow, its intrusive corky smell, now repelled her. She should be angrier, she should be talking to an old friend—she had several—she should be striding into the bedroom, demanding to know more. But she felt shrunken to a geometrical point of anxious purpose. Her judgment must be ready for printing by tomorrow’s deadline, she must work. Her personal life was nothing. Or should have been. Her attention remained divided between the page in her hand and, fifty feet away, the closed bedroom door. She made herself read a long paragraph, one she had been dubious about the moment she had spoken it aloud in court. But no harm in a robust statement of the obvious. Well-being was social. The intricate web of a child’s relationships with family and friends was the crucial ingredient. No child an island. Man a social animal, in Aristotle’s famous construction. With four hundred words on this theme, she put to sea, with learned references (Adam Smith, John Stuart Mill) filling her sails. The kind of civilized reach every good judgment needs.

  And next, well-being was a mutable concept, to be evaluated by the standards of the reasonable man or woman of today. What sufficed a generation ago might now fall short. And again, it was no business of the secular court to decide between religious beliefs or theological differences. All religions were deserving of respect provided they were, in Lord Justice Purchas’s phrase, “legally and socially acceptable” and not, in Lord Justice Scarman’s darker formulation, “immoral or socially obnoxious.”

  Courts should be slow to intervene in the interests of the child against the religious principles of the parents. Sometimes they must. But when? In reply, she invoked one of her favorites, wise Lord Justice Munby in the Court of Appeal. “The infinite variety of the human condition precludes arbitrary definition.” The admirable Shakespearean touch. Nor custom stale her infinite variety. The words derailed her. She knew the speech of Enobarbus by heart, having played him once as a law student, an all-female affair on a lawn in Lincoln’s Inn Fields one sunny midsummer’s afternoon. When the burden of bar exams had recently been lifted from her aching back. Around that time, Jack fell in love with her, and not long after, she with him. Their first lovemaking was in a borrowed attic room that roasted under its roof in the afternoon sun. An unopenable porthole window gave a view east of a slice of Thames toward the Pool of London.

  She thought of his proposed or actual lover, his statistician, Melanie—she had met her once—a silent young woman with heavy amber beads and a taste for the kind of stilettos that could wreck an old oak floor. Other women cloy/The appetites they feed, but she makes hungry/Where most she satisfies. It could be just like that, a poisonous obsession, an addiction drawing him away from home, bending him out of shape, consuming all they had of past and future, as well as present. Or Melanie belonged, as Fiona herself clearly did, with “other women,” the ones who cloy, and he would be back within the fortnight, appetite sated, making plans for the family holiday.

  Either way, unbearable.

  Unbearable and fascinating. And irrelevant. She forced herself back to her pages, to her summary of the evidence from both parties—efficient and drily sympathetic enough. Next, her account of the court-appointed social worker’s report. A plump, well-intentioned young woman often out of breath, uncombed hair, untucked unbuttoned blouse. Chaotic, twice late for the proceedings,
due to some complicated trouble with car keys and documents locked in her car and a child to collect from school. But in place of the usual please-both-parties dither, the Cafcass woman’s account was sensible, even incisive, and Fiona quoted her with approval. Next?

  She looked up and saw her husband on the other side of the room, pouring another drink, a big one, three fingers, perhaps four. And barefoot now, as he, the bohemian academic, often was indoors in summer. Hence the quiet entrance. Likely he had been lying on the bed, regarding for half an hour the lacy ceiling moldings, reflecting on her unreasonableness. The hunched tension of the shoulders, the way he returned the stopper—a smack with the heel of his thumb—suggested that he had padded in for an argument. She knew the signs.

  He turned and came toward her with his undiluted drink. The Jewish girls, Rachel and Nora, must hover behind her like Christian angels and wait. Their secular god had troubles of her own. From her low perspective, she had a decent view of his toenails—nicely trimmed and squared off, bright and youthful half-moons, no sign of the fungal streaks that stained her own toes. He kept in shape with faculty tennis and a set of weights in his study, which he aimed to raise a hundred times in the course of every day. She did little more than haul her bag of documents through the Courts of Justice to her room, taking the stairs rather than the lift. He was handsome in an unruly way, lopsidedly square-jawed, a toothy game-for-anything expression that charmed his students, who didn’t expect a dissolute look in a professor of ancient history. She had never thought he laid a finger on the kids. Now, everything looked different. Perhaps, for all a lifetime’s entanglement in human weakness, she remained an innocent, mindlessly exempting herself and Jack from the general condition. His only book for the non-academic reader, a pacy life of Julius Caesar, made him briefly almost famous in a muted, respectable fashion. Some pert little second-year minx might have irresistibly put herself in his way. There was, or there used to be, a couch in his office. And a NE PAS DÉRANGER sign taken from the Hôtel de Crillon at the end of their long-ago honeymoon. These were new thoughts, this was how the worm of suspicion infested the past.

  He sat down in the nearest chair. “You couldn’t answer my question so I’ll tell you. It’s been seven weeks and a day. Are you honestly content with that?”

  She said quietly, “Are you already having this affair?”

  He knew that a difficult question was best answered by another. “You think we’re too old? Is that it?”

  She said, “Because if you are I’d like you to pack a bag now and leave.”

  A self-harming move, without premeditation, her rook for his knight, utter folly, and no way back. If he stayed, humiliation; if he left, the abyss.

  He was settling into his chair, a studded, wood and leather piece with a look of medieval torture about it. She had never liked Victorian Gothic, and never less than now. He crossed his ankle over his knee, his head was cocked as he looked at her in tolerance or pity, and she looked away. Seven weeks and a day also had a medieval ring, like a sentence handed down from an old Court of Assize. It troubled her to think that she might have a case to answer. They’d had a decent sex life for many years, regular and lustily uncomplicated, on weekdays in the early morning just as they woke, before the dazzling concerns of the working day penetrated the heavy bedroom curtains. At weekends in the afternoons, sometimes after tennis, social doubles in Mecklenburgh Square. Obliterating all blame for one’s partner’s fluffed shots. In fact, a deeply pleasurable love life, and functional, in that it delivered them smoothly into the rest of their existence, and beyond discussion, which was one of its joys. Not even a vocabulary for it—one reason why it pained her to hear him mention it now and why she barely noted the slow decline of ardor and frequency.

  But she had always loved him, was always affectionate, loyal, attentive, only last year had nursed him tenderly when he broke his leg and wrist in Méribel during a ridiculous downhill ski race against old school friends. She pleasured him, sat astride him, now she remembered, while he lay grinning amid the chalky splendor of his plaster of Paris. She did not know how to refer to such things in her own defense, and besides, these were not the grounds on which she was being attacked. It was not devotion she lacked but passion.

  Then there was age. Not the full withering, not just yet, but its early promise was shining through, just as one might catch in a certain light a glimpse of the adult in a ten-year-old’s face. If Jack, sprawled across from her, seemed absurd in this conversation, then how much more so must she appear to him. His white chest hair, of which he remained proud, curled out over his shirt’s top button only to declare that it was no longer black; the head hair, thinning monkishly in the familiar pattern, he had grown long in unconvincing compensation; shanks less muscular, not quite filling out his jeans, the eyes holding a gentle hint of future vacancy, with a matching hollowness about the cheeks. So what then of her ankles thickening in coquettish reply, her backside swelling like summer cumulus, her waist waxing stout as her gums receded? All this still in paranoid millimeters. Far worse, the special insult the years reserved for certain women, as the corners of her mouth began their downward turn in pursuit of a look of constant reproach. Fair enough in a bewigged judge frowning at counsel from her throne. But in a lover?

  And here they were, like teenagers, shaping up to discuss themselves in the cause of Eros.

  Tactically astute, he ignored her ultimatum. Instead he said, “I don’t think we should give up, do you?”

  “You’re the one who’s walking away.”

  “I think you have a part in this too.”

  “I’m not the one about to wreck our marriage.”

  “So you say.”

  He said it reasonably, projecting the three words deep into the cave of her self-doubt, shaping them to her inclination to believe that in any conflict as embarrassing as this, she was likely to be wrong.

  He took a careful sip of his drink. He was not going to get drunk in order to assert his needs. He would be grave and rational when she would have preferred him loudly in the wrong.

  Holding her gaze he said, “You know I love you.”

  “But you’d like someone younger.”

  “I’d like a sex life.”

  Her cue to make warm promises, draw him back to her, apologize for being busy or tired or unavailable. But she looked away and said nothing. She was not going to dedicate herself under pressure to revive a sensual life she had at that moment no taste for. Especially when she suspected the affair had already begun. He had not troubled himself to deny it, and she was not going to ask again. It was not only pride. She still dreaded his reply.

  “Well,” he said after their long pause. “Wouldn’t you?”

  “Not with this gun to my head.”

  “Meaning?”

  “I shape up or you go to Melanie.”

  She assumed he had understood her meaning well enough but had wanted to hear her say the woman’s name, which she had never spoken out loud before. It evinced a tremor or a tightening in his face, a helpless little tic of arousal. Or it was the naked phrasing, the “go to.” Had she lost him already? She felt suddenly dizzy, as though her blood pressure had dipped, then soared. She pushed herself upright on the chaise longue, and set down on the carpet the page of the judgment still in her hand.

  “That’s not how it is,” he was saying. “Look, turn this around. Suppose you were in my place and I was in yours. What would you do?”

  “I wouldn’t go and find myself a man and then open negotiations with you.”

  “What, then?”

  “I’d find out what was troubling you.” Her voice sounded prim in her ears.

  He gestured toward her grandly with both hands. “Fine!” The Socratic method, as used, no doubt, on his students. “So what is troubling you?”

  For all the stupidity and dishonesty of the exchange, it was the only question and she’d invited it, but she felt irritated by him, condescended to, and for the moment she didn’t
reply and instead looked past him down the room to the piano, barely played in two weeks, and the silver-framed photos it supported in country-house style. Both sets of parents from wedding day to dotage, his three sisters, her two brothers, their wives and husbands present and past (disloyally, they struck no one off), eleven nephews and nieces, then the thirteen children they in turn had made. Life accelerating to people a small village clustered on a baby grand. She and Jack had contributed nothing, no one, beyond family reunions, near-weekly birthday presents, multigenerational holidays in the cheaper sort of castle. In their apartment, they hosted much family. At the end of the hallway was a walk-in cupboard filled with folded-up cot, high chair and playpen, and three wicker baskets of chewed and fading toys in readiness for the next addition. And this summer’s castle, ten miles north of Ullapool, awaited their decision. According to the ill-printed brochure, a moat, a working drawbridge and a dungeon with hooks and iron rings in the wall. Yesterday’s torture was now a thrill for the under-twelves. She thought again of the medieval sentence, seven weeks and a day, a period that began with the final stages of the Siamese twins case.

  All the horror and pity, and the dilemma itself, were in the photograph, shown to the judge and no one else. Infant sons of Jamaican and Scottish parents lay top-and-tailed amid a tangle of life-support systems on a pediatric intensive-care bed, joined at the pelvis and sharing a single torso, their splayed legs at right angles to their spines, in resemblance of a many-pointed starfish. A measure fixed along the side of the incubator showed this helpless, all-too-human ensemble to be sixty centimeters in length. Their spinal cords and the base of their spines were fused, their eyes closed, four arms raised in surrender to the court’s decision. Their apostolic names, Matthew and Mark, had not encouraged clear thinking in some quarters. Matthew’s head was swollen, his ears mere indentations in roseate skin. Mark’s head, beneath the neonatal woolen cap, was normal. They shared only one organ, their bladder, which was mostly in Mark’s abdomen and which, a consultant noted, “emptied spontaneously and freely through two separate urethras.” Matthew’s heart was large but “it barely squeezed.” Mark’s aorta fed into Matthew’s and it was Mark’s heart that sustained them both. Matthew’s brain was severely malformed and not compatible with normal development; his chest cavity lacked functional lung tissue. He had, one of the nursing staff said, “not the lungs to cry with.”