The Children Act

  Henry turned back toward Fiona. “There are a very few who depart from the teachings of the Governing Body. I don’t know anyone in our congregation, and our elders are quite clear about it.”

  The overhead lights gleamed brilliantly on Berner’s polished scalp. In virtual parody of the hectoring cross-examiner, he held the lapel of his jacket in his right hand. “These strict elders have been visiting your son every day, have they not? They’re keen to make sure he doesn’t change his mind.”

  The first hint of irritation afflicted Kevin Henry. He squared up to Berner, gripping the edge of the witness stand, leaning slightly forward, as though only an invisible leash restrained him. His tone, however, remained level. “These are kind and decent men. Other churches have their priests going around the wards. My son gets advice and comfort from the elders. If he didn’t he’d let me know.”

  “Isn’t it true that if he agreed to be transfused he’d be what you call disfellowshipped? In other words, cast out of the community?”

  “Disassociated. But it isn’t going to happen. He isn’t going to change his mind.”

  “He’s technically still a child, Mr. Henry, in your care. So it’s your mind I want to change. He’s frightened of being shunned, isn’t that the term you use? Shunned for not doing what you and the elders want. The only world he knows would turn its back on him for preferring life to a terrible death. Is that a free choice for a young lad?”

  Kevin Henry paused to think. For the first time he looked back at his wife. “If you spent five minutes in his company you’d realize he’s someone who knows what he’s about and is able to make a decision according to his faith.”

  “I rather think we’d find a terrified and seriously ill boy desperate for the approval of his parents. Mr. Henry, have you told Adam that he’s free to have a transfusion if he so wishes? And that you’d still love him?”

  “I’ve told him that I love him.”

  “Only that?”

  “It’s enough.”

  “Do you know when Jehovah’s Witnesses were commanded to refuse blood transfusions?”

  “It’s set down in Genesis. It dates from the Creation.”

  “It dates from 1945, Mr. Henry. Before then it was perfectly acceptable. Are you happy with a situation in which in modern times a committee in Brooklyn has decided your son’s fate?”

  Kevin Henry lowered his voice, out of respect for the subject matter perhaps, or in the face of a difficult matter. Again he included Fiona in his answer, and there was warmth in his voice. “The Holy Spirit guides the anointed representatives—we call them the slaves, Your Honor—it helps them toward deep truths that weren’t previously understood.” He turned back to Berner and said matter-of-factly, “The Governing Body is Jehovah’s channel of communication to us. It’s his voice. If there are changes in the teaching it’s because God only gradually reveals his purpose.”

  “This voice doesn’t tolerate much dissent. It says here in this copy of The Watchtower that independent thinking was promoted by Satan at the beginning of his rebellion in October 1914 and such thinking should be avoided by followers. Is this what you’re telling Adam, Mr. Henry? That he must watch out for Satan’s influence?”

  “We like to avoid dissent and quarrels and keep ourselves unified.” Mr. Henry’s confidence was growing. He appeared to address the barrister privately. “You probably have no idea what it is to submit to a higher authority. You need to understand that we do so of our own free will.”

  There was a trace of a lopsided smile on Mark Berner’s face. Admiration for his adversary, perhaps. “You’ve just told my learned colleague that in your twenties your life was a mess. You said you were a bit of a wild man. Hardly likely, is it, Mr. Henry, that several years earlier, when you were Adam’s age, you knew your own mind.”

  “He’s lived his whole life in the truth. I didn’t have that privilege.”

  “And then, as I recall, you said you discovered that life was precious. Did you mean other people’s lives or just your own?”

  “All life is the gift of the Lord. And his to take away.”

  “Easy to say, Mr. Henry, when it’s not your life.”

  “Harder to say when it’s your own son.”

  “Adam writes poetry. Do you approve of that?”

  “I don’t think it’s particularly relevant to his life.”

  “You’ve rowed with him about it, haven’t you?”

  “We’ve had serious conversations.”

  “Is masturbation a sin, Mr. Henry?”

  “Yes.”

  “And abortion? Homosexuality?”

  “Yes.”

  “And this is what Adam has been taught to believe?”

  “It’s what he knows to be true.”

  “Thank you, Mr. Henry.”

  John Tovey rose and, somewhat breathlessly, told Fiona that given the hour he had no questions to ask of Mr. Henry, but he would call the social worker, the Cafcass officer. Marina Greene was slight, sandy-haired and spoke in short precise sentences. Helpful, at this stage of the afternoon. Adam, she said, was highly intelligent. He knew his Bible. He knew the arguments. He said he was prepared to die for his faith.

  He had said the following—and here, with the judge’s permission, Marina Greene read from her notebook. “I’m my own man. I’m separate from my parents. Whatever my parents’ ideas are, I’m deciding for myself.”

  Fiona asked what action Mrs. Greene thought the court should take. She said her view was simple, and she apologized for not knowing every turn of the law. The lad was clever and articulate, but still very young. “A child shouldn’t go killing himself for the sake of religion.”

  Both Berner and Grieve declined to cross-examine.

  BEFORE HEARING CLOSING submissions Fiona allowed a short break. The court rose and she went quickly to her room, drank a glass of water at her desk and checked her e-mails and texts. Plenty of both, but nothing from Jack. She searched again. It wasn’t sadness or anger she felt now, but a dark hollowing-out, an emptiness falling away behind her, threatening to annihilate her past. Another phase. It didn’t seem possible that the person she knew most intimately could be so cruel.

  It was a relief, several minutes later, to be back in court. When Berner rose it was inevitable that he should move the argument to “Gillick competence”—a point of reference in both family law and pediatrics. Lord Scarman had provided the formulation, and the barrister quoted him now. A child, that is, a person under sixteen, may consent to his or her own medical treatment “if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.” If Berner, in advancing the hospital’s case to treat Adam Henry against his wishes, was invoking Gillick now, it was to preempt Grieve from doing so on behalf of the parents. Get in first and shape the terms. He did so in quick short sentences, his smooth tenor’s voice as clear and precise as it was when he sang Goethe’s tragic poem.

  It was a given, Berner said, that not transfusing was of itself a form of treatment. None of the staff looking after Adam doubted his cleverness, his extraordinary way with words, his curiosity and passion for reading. He had won a poetry competition run by a serious national newspaper. He could recite a long part of an ode by Horace. He was truly an exceptional child. The court had heard the consultant confirm that here was an intelligent and articulate boy. Crucially, however, the doctor had just confirmed that Adam had only the vaguest notion of what would happen if he did not receive blood. He had a general, somewhat romantic idea of the death that awaited him. Therefore he could not be said to fulfill the terms as set out by Lord Scarman. Adam most certainly did not “understand fully what is proposed.” Quite rightly, the medical staff would not want to explain it to him. The senior health professional was in the best position to judge, and his conclusion was clear. Adam was not Gillick competent. Second, even if he was, and therefore had the right to assent to treatment, this was very different from the right to refuse life-saving trea
tment. On this the law was clear. He had no autonomy in the matter until he was eighteen.

  Third, it was plain, Berner continued, that the risks of infection following transfusion were minimal. Whereas the consequences of not transfusing were certain and horrific, probably fatal. And fourth, it was no coincidence that Adam happened to have the same particular faith as his parents. He was a loving and devoted son who had grown up in the atmosphere of their sincere and strongly held beliefs. His highly unconventional views concerning blood products, as the doctor had forcefully suggested, were not his own. All of us, surely, had beliefs at the age of seventeen that would embarrass us now.

  Berner summarized at speed. Adam was not eighteen, did not understand the ordeal that lay ahead of him if he was not transfused, had been unduly influenced by the particular sect he had grown up in and was aware of the negative consequences should he defect. The views of Jehovah’s Witnesses lay far outside those of a modern, reasonable parent.

  As Mark Berner turned to sit down, Leslie Grieve was already on his feet. In his opening remarks, which he addressed a few feet to Fiona’s left, he too wished to direct her attention to a pronouncement of Lord Scarman’s. “The existence of the patient’s right to make his own decision may be seen as a basic human right, protected by the common law.” This court should therefore be extremely reluctant to interfere in a decision regarding medical treatment made by a person of evident intelligence and insight. It was plainly not enough to take shelter behind the two or three months that separated Adam from his eighteenth birthday. In a matter so gravely affecting an individual’s basic human right, it was inappropriate to resort to number magic. This patient, who had repeatedly and consistently made his wishes clear, was far, far closer to being an eighteen-year-old than he was to being seventeen.

  In an effort of memory, Grieve closed his eyes and quoted from Section 8 of the Family Law Reform Act of 1969. “The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age.”

  All those who met him, Grieve said, were struck by Adam’s precocity and maturity. “My Lady would be interested to know that he has read aloud some of his poems to the nursing staff. To great effect.” He was far more thoughtful than most seventeen-year-olds. It was necessary for the court to have regard to the position had he been born a few months earlier, when his fundamental right would have been secure. With the full support of his loving parents, he had made clear his objection to treatment and he had articulated in detail the religious principles on which his refusal rested.

  Grieve paused, as if to reflect, then gestured toward the door through which the consultant had exited the courtroom. It was perfectly understandable for Mr. Carter to despise the idea of withholding treatment. This merely demonstrated the professional devotion one would expect of so eminent a figure. But his professionalism clouded his judgment as to Adam’s Gillick competence. Ultimately, this matter was not medical. It was legal and moral. It concerned a young man’s inalienable right. He understood perfectly well where his decision could take him. To an early death. He had made himself clear many times. That he did not know the precise manner of his dying was beside the point. No one judged to be Gillick competent could be in full possession of that kind of knowledge. Indeed, nobody was. We all knew we would die one day. None of us knew how. And Mr. Carter had already conceded that the team treating Adam would not wish to impart to him such an understanding. The young man’s Gillick competence rested elsewhere, in his manifest grasp of the fact that refusing treatment could lead to his death. And Gillick, of course, rendered otiose the issue of his age.

  So far, the judge had made three crowded pages of notes. One of these, on a separate line, was “poetry?” Rising from the stream of argument was one bright image—supported by pillows, a teenage boy reading his verses to a tired nurse, who knew she was needed elsewhere but was too kind to say so.

  Fiona had written poetry when she was Adam Henry’s age, though she had never presumed to read it aloud, not even to herself. She remembered quatrains daringly unrhymed. There was even one about death by drowning, of sinking deliciously backward among the river weeds, an improbable fantasy inspired by the Millais painting of Ophelia, before which she’d stood enraptured during a school visit to the Tate. This daring poem in a crumbling notebook, on whose cover were doodles in purple ink of desirable hairstyles. As far as she knew, it lay at the bottom of a cardboard box, somewhere at the far end of the windowless spare room at home. If she could still call it home.

  Grieve concluded that Adam was so near to eighteen as to make no difference. He satisfied the conditions articulated by Scarman, and was Gillick competent. The barrister quoted Balcombe LJ. “As children approach the age of majority they are increasingly able to take their own decisions concerning their medical treatment. It will normally be in the best interests of a child of sufficient age and understanding to make an informed decision that the court should respect.” The court must take no view on a particular religion, save to respect expressions of faith. Nor should the court be tempted onto the dangerous ground of undermining an individual’s basic right to refuse treatment.

  Finally it was Tovey’s turn and he was brief. With the help of his cane he pushed himself to a standing position. He represented both the boy and Marina Greene, the boy’s guardian, and his tone was studiously neutral. The arguments for both sides had been well put by his colleagues and all relevant points in law had been covered. Adam’s intelligence was not in question. His grasp of scripture as understood and propagated by his sect was thorough. It was important to consider that he was almost eighteen, but the fact remained, he was still a minor. It was therefore entirely for Her Ladyship to decide the weight she should apportion to the boy’s wishes.

  When the barrister sat down there was silence as Fiona glared at her notes, ordering her thoughts. Tovey had helpfully narrowed them to a decision. Addressing him, she said, “Given the unique circumstances of this case, I’ve decided that I would like to hear from Adam Henry himself. It’s not his knowledge of scripture that interests me so much as his understanding of his situation, and of what he confronts should I rule against the hospital. Also, he should know that he is not in the hands of an impersonal bureaucracy. I shall explain to him that I am the one who will be making the decision in his best interests.”

  She went on to say that she would travel now with Mrs. Greene to the hospital in Wandsworth and, in her presence, would sit at Adam Henry’s bedside. Proceedings were therefore suspended until Fiona’s return, when she would give judgment in open court.

  Three

  THIS, FIONA DECIDED as her taxi halted in heavy traffic on Waterloo Bridge, was either about a woman on the edge of a crack-up making a sentimental error of professional judgment, or it was about a boy delivered from or into the beliefs of his sect by the intimate intervention of the secular court. She didn’t think it could be both. The question was suspended as she looked to her left, downstream toward St. Paul’s. The tide was running out fast. Wordsworth, on a nearby bridge, was right, either direction, best urban prospect in the world. Even in steady rain. At her side was Marina Greene. Beyond desultory small talk as they left the Courts of Justice, they had not spoken. Only proper, to keep a distance. And Greene, oblivious or well used to the upstream view on her right, was intent on her phone, reading, tapping, frowning in the contemporary manner.

  On the South Bank side at last, they turned upriver at walking pace and took almost fifteen minutes to reach Lambeth Palace. Fiona’s phone was off, which was her only defense against the compulsion to check texts and e-mail every five minutes. She had written but not sent a message. You cannot do this! But he was doing it, and the exclamation mark said it all—she was a fool. Her emotional tone, as she sometimes referred to it and which she liked to monitor, was entirely novel. A blend of desolation and outrage
. Or longing and fury. She wanted him back, she never wanted to see him again. Shame was also a component. But what had she done? Lost herself to work, neglected her husband, let one long case distract her? But he had his own work, he had his various moods. She had been humiliated and didn’t want anyone to know and would pretend that all was fine. She felt tainted by secrecy. Was that it, was that the shame? Once in the know, one of her sensible friends was bound to urge her to phone him to demand an explanation. Impossible. She still recoiled from hearing the worst. Every thought she had now about the situation she’d indulged several times before, and still she went round again. Treadmill thinking, from which only sleep, medically induced, could rescue her. Sleep, or this unorthodox excursion.

  At last they were on the Wandsworth Road and making twenty miles an hour, the speed of a horse at full gallop. They passed on the right an old cinema converted to squash courts where, many years ago, Jack had played to the limits of endurance to make eleventh place in an all-London tournament. And she, loyal young wife, somewhat bored, placed well back from the glass-fronted court, peeping from time to time at her notes on a rape case she was defending, and would lose. Eight years for her outraged client. Almost certainly blameless. Rightly, he never forgave her.

  She had a north Londoner’s ignorance of and disdain for the boundless shabby tangle of London south of the river. Not a Tube stop to give meaning and relation to a wilderness of villages swallowed up long ago, to sad shops, to dodgy garages interspersed with dusty Edwardian houses and brutalist apartment towers, the dedicated lairs of drug gangs. The pavement crowds, adrift in alien concerns, belonged to some other, remote city, not her own. How would she have known they were passing through Clapham Junction without the faded jokey sign above a boarded-up electrical store? Why make a life here? She recognized in herself the signs of an enveloping misanthropy and made herself remember her mission. She was visiting a seriously ill boy.