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Michael Asimow


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To my mind, the best parts of Evelyn are the three wonderful lawyers (all played by great actors) who rally to Desmond's side. They do it out of principle and human compassion, not for money. It's all pro bono. We seldom see this kind of lawyer in the movies anymore.

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By Michael Asimow

And now for Picturing Justice's award for the best legal movie of 2002. And the winner is…Evelyn! (At least, that's my vote) Granted the 2002 competition wasn't all that stiff, but still, this is a film that all fans of law and popular culture should see.

Evelyn, directed by Bruce Beresford and closely based on real events, is set in mid-1950's Ireland. In the film, the Doyles have three children (actually they had six, five boys and a girl). Evelyn, the oldest, is seven years old. The Dad, Desmond (Pierce Brosnan), is unemployed. The mom, Charlotte, deserts the family and vanishes. Unable to support his family, Desmond agrees to turn them over to "industrial schools" (actually austere Catholic facilities for orphans or destitute children). The judge who rules that the committal is valid urged Desmond "not to leave the child in the school for long."

About six months later, employed and equipped with a live-in girlfriend and "housekeeper," Desmond wants the kids back, but is thwarted by an arbitrary provision of the Family Law Act, 1941. Under that law, in cases of death or desertion of a spouse, the custodial parent can transfer custody to an industrial school. However, if the Ministry of Education opposes releasing the children, both parents must petition to get them out--and Charlotte has disappeared. The Ministry of Education exercised its discretion to hang on to the kids. As far as Desmond's legal rights to the kids are concerned, the Ministry reads the Family Law Act literally and refuses to turn over the kids--it takes one parent to sign 'em in but two to sign 'em out. The provision seems arbitrary, perhaps even an inadvertent drafting error, but there it is.

Thus little Evelyn (a dazzling Sophie Vavasseur) is stuck in St. Josephs; she's well treated by most of the nuns but slapped around by Sister Bridget who runs the place. The boys are in a different Catholic institution. And Desmond becomes more and more frantic as he gets the old run around from the bureaucracy.

Finally, he's referred to solicitor Michael Beattie (Stephen Rea). Beattie and Irish/American barrister Nick Barron (Aidan Quinn) are firmly rebuffed by a High Court judge. The actual decision is In re Doyle [1956] Irish Reports 217. The three-judge decision declares that the statute means what it says. Although the movie portrays the trial judge as very hostile, in fact the judges were sympathetic. One judge remarked: "No adjective I can think of could adequately express the degree of reluctance with which I conclude that" Doyle is entitled to no relief.

The High Court's decision reads like an example of extreme legal positivism. The text of a statute is sacred, judges cannot engage in any kind of mildly creative or purposive interpretation. Surely "parents" means "parent" when the other one has vanished. Moreover, the idea that a statute should be construed to avoid constitutional objections was apparently unknown to the judges (they said there was no precedent for such an argument). The judges do not even discuss Desmond's claim of estoppel (since the original committing judge led him to believe he could get the kids back as soon as he was able to care for them).

Now joined by a feisty retired barrister (Alan Bates), Desmond heads for the Irish Supreme Court, seeking to have the statute declared invalid under several provisions of the Irish constitution of 1937 that protect parental rights. Indeed, the constitution has provisions that seem amazingly on point. Article 41.1 provides that the family possesses "inalienable and imprescriptible rights, antecedent and superior to all positive law." Article 42.1 protects the "inalienable right and duty of parents to provide, according to their means, for the . . . education of their children." Article 42.3.1 provides that "The State shall not oblige parents . . . to send their children to schools established by the State."

In the film, we see a dramatic argument by counsel and a cliff-hanger decision: by a 2-1 vote, the Supreme Court holds the statute conflicts with the constitution and is invalid. The film suggests that this case was the first in which the Irish Supreme Court exercised its power of judicial review over a statute. In fact, there were cases before Doyle in which the Irish Supreme Court invalidated statutes, but very few. (Starting in the 1960's, there were many) So the case is a true landmark, not only in family law but in Irish constitutional law. For some unknown reason, the Supreme Court's decision in Doyle was not published in the Irish Reports in 1955 but was finally published in 1989. In re Doyle [1989] Irish Law Rep. Monthly 277.

The film is faithful to the actual events that transpired in 1953 through 1955. The filmmakers deserve praise for attempting to convey the big picture of this historic constitutional dispute fairly and accurately; the inevitable departures from historic truth are relatively minor and do not change the big picture. In my view, the filmmakers have discharged their responsibility as creators of a film that claims to be based on a true story. They have told the truth in a broad sense, which is all you can ask of a product designed and marketed as an entertainment vehicle.

The actual written decisions in the Doyle cases explain some aspects of the film that seem puzzling. In the film, the same hostile judge sits in the High Court (the trial court) and then on the Supreme Court. This didn't happen; there was no overlap between the judges of the two courts (and none of the High Court judges were hostile). The trial court did not deny leave to appeal. The lawyers did not overlook the constitutional issue; they first exhausted non-constitutional issues through a mandamus action in the High Court (including an argument that the Family Law Act should be construed in light of its possible constitutional invalidity). They then brought a subsequent habeas corpus case in the High Court, leading to a trial and a decision (apparently unreported) in which the judges indicated that they would upheld Doyle's constitutional claim; as then required by statute, the High Court certified the issue to the Supreme Court for a final decision. The Supreme Court's decision was unanimous, not split (indeed the 1937 Constitution prohibits non-unanimous opinions).

Apparently Evelyn Doyle sold her story to the movies but was displeased with the script. She published her version of the events in Tea and Green Ribbons: A Memoir (2002). In the book, Evelyn says she was never mistreated by the nuns. (And there is no reference to any claim of physical abuse in either of the published Doyle decisions). Evelyn's years in the industrial school were happy ones. Similarly, the boys were quite happy in their school. Indeed, Evelyn felt ambivalent about going home since she disliked Jessie Brown, her father's girlfriend (Jessie Brown is called Bernadette Beattie in the film). (Remember, Ireland had no divorce during this period so Desmond couldn't marry Jessie). If Evelyn's account can be trusted, the film diverges from the real events in its depiction of the slapping incident. That apparently fictitious event made the film more dramatic (and the incident resonates with contemporary audiences because of the horrible sexual abuse scandals in the Catholic church).

Evelyn's memoir also helps to explain why the Minister's fought the case to the bitter end, rather than yielding custody to Desmond as it had discretion to do under the Family Law Act. After all, beds in these facilities must have been at a premium and caring for the children was costly. Why would the Ministry insist on holding on to children who have a parent willing and able to care for them?

The memoir suggests that the real reason was that Jessie Brown was Church of England, not Roman Catholic. This suggests that the back story of Evelyn should have been about the government's and the clergy's policy to keep the children away from a non-Catholic mother. If this theme had been introduced into the story, it would have deepened the political impact of the film and would have helped viewers understand why the Ministry was acting in such an apparently irrational manner. The fact that this theme is left out of the movie suggests that the filmmakers were prepared to criticize an individual nun but not to make a political attack on the Irish Church hierarchy.

To my mind, the best parts of Evelyn are the three wonderful lawyers (all played by great actors) who rally to Desmond's side. They do it out of principle and human compassion, not for money. It's all pro bono. We seldom see this kind of lawyer in the movies anymore. (Robert Morton in The Winslow Boy in 1999 was another admirable pro bono lawyer). We're more accustomed to seeing attorneys like Rita Harrison in I Am Sam (2001) or Gavin Banek in Changing Lanes (2002)--greedy, heartless, unethical, obnoxious creeps. Not so in Evelyn: Desmond Doyle's attorneys represent our profession at its very best. These are the kinds of lawyers that each of us would like to be.

The film is also noteworthy because it is about a fundamental principle of constitutional law--the right of parents to make fundamental decisions about the lives and education of their children. It's a principle that the lawyers in Evelyn argue at length and that the Irish Supreme Court addresses and upholds. (Although the U. S. constitution lacks explicit provisions like those in the Irish constitution, it's likely that the result would be the same under substantive due process; indeed several U. S. Supreme Court cases, Pierce v. Society of Sisters and Meyer v. Nebraska, as well as Marbury v. Madison, were cited to the Irish Supreme Court but not relied on in the decision). It's rare that serious constitutional themes are treated in popular culture, but judicial review of statutes is such a fundamental and dramatic part of our legal system (as well as the Irish system) that it deserves much more frequent treatment than it receives.

Evelyn is one of a string of excellent films involving child custody disputes that seek to make a legal or political point. In each film, obviously deserving and empathetic adults seek the custody of adorable children--and are thwarted by an unfeeling bureaucracy or perverse legal rules or practices. Kramer vs. Kramer (1979) is the most prominent member of this subgenre--the legal system blindly prefers the mother over the father regardless of the child's best interests. It was followed by such memorable films as Losing Isaiah (1995) (trans-racial adoption) and I Am Sam (parental rights of retarded parents). Indeed, the beloved A Thousand Clowns (1965) and The Champ (1931 and 1979) are honored members of the club. Evelyn strongly resembles these films. It involves a deserving parent, nice little kids, perverse legal rules, and a bureaucracy apparently intent on wresting children from their parents so they can be brought up in rigidly Catholic institutions.

So let's hear it for the best legal picture of 2002! Evelyn probably won't win an Oscar, but I'd present it with the Golden Gavel if I had one.

Posted January 21, 2003

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