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It’s not child’s play

06 Sep 2019 / Family law Print

It’s not child’s play

Ensuring that the child’s voice is heard is a difficult and complicated issue, particularly in the absence of guidance for solicitors.

A solicitor must first contend with the question of whether parental or guardian consent is required if a child or young person wants legal advice.

While the answer is a resounding no, it is understandable why the issue of consent might arise as, for example, parental consent is required for medical treatment of a child under the age of 16.

Legal standing

A separate question is whether and how a child has legal standing in court. Further, competence of a child or young person to engage a solicitor is a fundamental consideration.

Addressing these questions requires one to conduct a broader analysis of children’s right to legal information, advice and representation, the contexts in which these rights arise, and the ethical and professional conduct considerations that lawyers in Ireland need to address in order to ensure access to justice for children and young people.

Children’s rights

The United Nations Convention on the Rights of the Child (UNCRC) sets the standard in terms of children’s rights. The right to legal information, advice, and representation is at times explicit and at other times implied.

In terms of the right to freedom of expression, the right shall include freedom to seek, receive, and impart information and ideas of all kinds. A child enjoys the right to privacy and family life much the same as an adult. In terms of any deprivation of liberty, “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance” (article 37).

Domestic law

Likewise, in domestic law, both the Constitution and statute provide for a child’s right to legal information, advice, and representation, at times explicitly and at times implicitly.

The right to be heard in Ireland should be interpreted in line with the UNCRC General Comment no 12 on the right of the child to be heard, which states that, after the child has decided to be heard, he or she will have to decide how to be heard, “either directly, or through a representative or appropriate body”. The committee recommends that a child be given the opportunity to be directly heard in any proceedings.

Moreover, it states: “The representative can be the parent(s), a lawyer, or another person (inter alia, a social worker). However, it must be stressed that in many cases (civil, penal or administrative), there are risks of a conflict of interest between the child and their most obvious representative (parent(s)) …The method chosen should be determined by the child (or by the appropriate authority as necessary) according to her or his particular situation.”

Advocate

A lawyer is not necessarily required for a child to be heard. Indeed, an advocate can come in many forms. However, front and centre must be a child’s right to legal information, advice, and representation if the right to be heard is to be made meaningful.

Since the child enjoys the right that her or his views are given due weight, the decision-maker has to inform the child of the outcome of the process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously. The information may prompt the child to insist, agree or make another proposal or, in the case of a judicial or administrative procedure, file an appeal or a complaint (paragraphs 35 and 36 – emphasis added).

Other considerations

There are a range of contexts where children might seek the services of a lawyer in Ireland, if given the opportunity. Private family law proceedings certainly raise a lot of legal questions for children. A child in care may similarly want to know where he or she stands. They may wish to challenge their placement, their foster carer, social worker or guardian ad litem.

The circumstances where a child may wish to engage a solicitor are often complex. Familial relationships are not necessarily straightforward. Children are often in vulnerable situations and, at their most vulnerable, have little or no access to people who will advocate on their behalf. It is all the more unfortunate, therefore, that for lawyers who do become involved, there is a large gap between the challenges and complexities they encounter and the guidance and training available in this jurisdiction.

Code of Practice

For a solicitor engaging a child as a client, the only practice guidance available is in the Law Society’s Code of Practice: Family Law in Ireland. This states: “You should only accept instructions from a child if you have the necessary training and expertise in this field and the child is of an age and understanding to instruct. The solicitor’s role is to provide independent representation and advice to the child.

You must continually assess the child’s competence to give instructions … You should ensure that the child has sufficient information to make informed decisions. The information should be given to the child in a clear and understandable manner and you should be aware that certain information may be considered harmful to a child” (p18).

Risks

It is clear that solicitors should not see the children who are subject of any case in which they are advising, unless they are acting for the child.

However, it is unclear whether it would be appropriate to see the child client with one parent in private family law proceedings. To see a child with one parent presents a variety of risks: undue influence, conflict of interest, accusations of parental alienation, violation of the in camera rule. However, it is extremely difficult, if not nigh on impossible, for a 14 or 15-year-old to access a lawyer generally without their parents.

In an ideal world, both parents would accompany a child where that child had expressed a wish to get their own legal advice. However, if the breakdown of a marriage has necessitated judicial assistance, we are often not dealing with an ‘ideal world’ scenario. And if a child does seek advice on their own, how can that child vindicate their rights?

Practical issues

The lack of professional guidance and training leaves practitioners with a number of practical questions.

In terms of representation of children in care proceedings, timely clarification has been handed down by the High Court in the decision of AO’D v Judge Constantine G O’Leary & ors (14 October 2016): a guardian ad litem represents the child in child care proceedings. The courts, nevertheless, have failed to vindicate the constitutional right of the child to be heard in proceedings. The Special Rapporteur on Child Protection is unequivocal when he states that “there is a distinct lack of provision in Ireland for hearing children”.

Guardian ad litem

Appointment of a guardian ad litem is the primary manner for a child in care proceedings to be heard. However, according to the Child Care Law Reporting Project, guardians ad litem were appointed in 53% of cases observed, with regional variations from 13% to 80% (see the 11th Report of the Special Rapporteur on Child Protection, p83).

Ms Justice Baker in AO’D opines that “the Oireachtas intended the appointment of a guardian to be a means by which a child could engage in the litigation, and the appointment is an alternative to the appointment of a child as a party, or as a person with some of the rights of a party” (paragraph 105). 

Best interests of the child

This is a more nuanced interpretation of the relevant legislation. Section 26 of the Child Care Act 1991, as amended by section 13 of the Child Care (Amendment) Act 2011, indicates that a guardian ad litem shall “promote the best interests of the child concerned and convey the views of that child to the court, in so far as is practicable, having regard to the age and understanding of the child”.

In light of Ms Justice Baker’s decision, however, what is the relationship between a solicitor representing a guardian ad litem and the child?

It would appear that the solicitor is indirectly representing the child: Ms Justice Baker opines that a guardian ad litem with the possibility of legal representation is a “necessary implication from the scheme of the act if one is to interpret it in the context of constitutional and natural fair procedures, and if the child who is represented by a guardian ad litem is to be treated as having full procedural rights to engage in the proceedings”.

What then is the relationship between the solicitor and a child, should the child wish to challenge their guardian ad litem or seek to satisfy him or herself that their wishes are adequately conveyed and due weight given to them in court?

Direct representation is available to a child in some circumstances under section 25 of the Child Care Act 1991. Based on the legislation, a child in those circumstances would no longer enjoy an independent assessment of best interests by a guardian ad litem, as section 26(4) stipulates that the appointment of the guardian ad litem would cease to have effect. What is the role of the practitioner in those circumstances?

What next?

These questions, when left unanswered, translate into considerable barriers for children and young people accessing justice. It is for the legal profession and judicial system to play their part in dismantling the barriers. Guidance and training are a first step in order to ensure professional conduct and best practice.

The Special Rapporteur on Child Protection, Dr Geoffrey Shannon, has highlighted the practice in Belgium where one must undertake a two-year course to train as a ‘youth lawyer’ (11th Report, p74.) In England, a Child Law Accreditation Scheme is available to practitioners representing children in child law proceedings. Solicitors in this jurisdiction would, no doubt, welcome similar developments here.

Ruth Barry
Ruth Barry works as a solicitor with Community Law & Mediation