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EVELYN--BEST LEGAL MOVIE OF 2002?
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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