Picturing Justice, the On-Line Journal of Law and Popular Culture

Taunya Lovell Banks
is Jacob A. France Professor of Equality Jurisprudence, University of Maryland School of Law


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What seems to make this case somewhat unique in the 1950s is that the father is fighting for custody. Once more the unstated assumption in the film is that in custody battles during this era fathers generally lose, at least in countries where the prevailing societal presumption is that children are better off with mothers rather than fathers.

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Government At War With Parents: Evelyn

by Taunya Lovell Banks

Bruce Beresford's latest film, Evelyn, is a feel-good Irish version of the 1997 PBS documentary The Orphan Trains (directed by Janet Graham and Edward Gray). The Orphan Trains documents the removal of more than 100,000 impoverished children from the streets of New York City between 1854 and 1929 to homes in rural America. Large numbers of impoverished children from other urban areas like Boston, Chicago and Philadelphia also were sent to the country in a misguided effort to "rescue" them. Some children were adopted by farm families, but many worked as farm laborers. Ireland adopted a similar policy in the 1940s and 1950s.

Evelyn reminds us that misguided government policies separating families are not unique to the United States. In 1953 Evelyn Doyle's mother runs off leaving her husband to care for their three children. Evelyn's doting father, Desmond Doyle (played by Pierce Brosnan), is unemployed and overly fond of the drink, so the state intercedes for the alleged welfare of the children. The children are placed in institutions run by the Catholic Church, and the stage is set for the battle to regain custody. Doyle decides to take on both the government and the Catholic Church. Evelyn is about Desmond's attempt to regain custody of his children.

In the first of several courtroom scenes, the Magistrate tells Desmond that he is losing his children because he has no job or mother for his children. When the Catholic nuns come in to clean the children and the house, one wonders whether Desmond's real offense is not having a wife rather than being impoverished. The clear implication is that in Ireland during the 1950s, fathers could not have sole custody of their children without the consent of the mothers. Many of the legal questions about the case, however, are not fully developed--in part because the story is told from the point-of-view of eight-year-old Evelyn.

The film addresses several legal obstacles. The first is the black letter of the Children's Act of 1941. The Act said that a child could only be removed from the church-run institutions with the consent of their "parents." The Irish Court interprets the law as requiring the consent of both living parents. Since Evelyn's mother's whereabouts are unknown, it is impossible under the law for Doyle to regain custody of his children. In theory, at least, had Desmond run off instead of Evelyn's mother, the children still would have been removed. Whether this actually happened is unclear. Many viewers may assume that mothers retained custody of their children after being abandoned by their husbands, or that children were never taken when both parents were present in the home. The reality not evident in Evelyn is much grimmer.

A second significant legal issue that is not adequately explained to American audiences is the reluctance of the Irish Supreme Court to overturn a statute enacted by the legislature. The notion of judicial review is so widely accepted in this country, it might be hard for American viewers to appreciate the institutional significance of the Doyle case. Although the 1937 Constitution gives the Irish Supreme Court the power to judicially review statutes, the Court had not exercised the power to invalidate a statute until the Doyle case.

Evelyn is based on an actual 1953 case that became a cause celebre in Ireland. Church-run schools, called "Magdalens," were dreaded places occupied by pregnant unmarried girls and children deemed troublemakers, juvenile delinquents, orphans, or destitute. Since Evelyn's experiences in the institution are relatively benign, the film's focus is on the court battle. What seems to make this case somewhat unique in the 1950s is that the father is fighting for custody. Once more the unstated assumption in the film is that in custody battles during this era fathers generally lose, at least in countries where the prevailing societal presumption is that children are better off with mothers rather than fathers.

Evelyn leaves many important questions unanswered. We never learn why the legislature enacted the 1941 law, or why Evelyn's mother decided to leave her children. Evelyn Doyle, after selling her story to the filmmakers, penned a memoir with the same name that became a best seller in the United Kingdom. A version of this memoir, entitled Tea and Green Ribbons, was released in the United States in December. In the memoir Evelyn writes that when at age 21 she found and confronted her runaway mother, the woman gave "her reasons" for leaving.

Evelyn's mother left six, not three, children, and a drunken unemployed husband. Many men have left home for less reason, but society tends to frown more when mothers leave. Thus, the viewing audiences may be tempted to overlook or downplay Desmond's faults. It helps when Desmond is played by an attractive film star like Brosnan. The film also lets the Catholic Church off lightly. Doyle's lawyers allude to the Church as a powerful opponent, but the force of the Church is never clearly displayed in the film. We are left wondering why the government fought so hard for such a seemingly insignificant case.

One picky criticism about lack of consistency: in the final scene of Evelyn there is a prominent "placement" of a Kellogg's Corn Flakes box on top of the refrigerator. First, it is highly unlikely that an Irish working class household in the 1950s, still recovering from World War II, would have an American cereal in the house. Second, even if Desmond's Irish-born, but American raised, lawyer sent him a box of cereal, the filmmaker's Kellogg's corn flakes box looks like the contemporary box, not like a 1950's box.

A better film for raising many issues present in Evelyn and adding several more is Phillip Noyce's latest film, Rabbit Proof Fence (2002), a powerful film about family, culture and cultural conflict, and my personal favorite for 2002. Australia is attempting to come to grips with the consequences of a government policy authorizing the removal of "mixed race" children, children of aboriginals and whites, from their parents and placement in church-run institutions. These children, called the Stolen Generation, are at the center of a raging debate in Australia over whether the removal policy was simply misguided benevolence or genocide directed at eliminating the aboriginal community. The film clearly states that the goal for the removal of mixed race children was to assimilate and whiten their offspring, minimizing growth within the aboriginal community -- genocide.

What Rabbit Proof Fence indicates more clearly than Evelyn is how governments, and often religious institutions, use law to undercut parental authority and autonomy, especially in situations where parents are dependent upon government largess (food, shelter, etc.) One important difference, however, is that the parents in Rabbit Proof Fence did not have available to them the same formal legal remedies to challenge the removal of their children as Desmond Doyle. Our question should be why not.

Finally, after viewing Evelyn, Rabbit Proof Fence or The Orphans Trains, we should ask ourselves whether each country has learned anything about when and how government should intervene in family life. The hard question is how to determine when government intervention is well-meaning and even if well-meaning, misguided.

Posted January 21, 2003

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