Legal Representation as a Necessary Element of Children’s Access to and Participation in Family Justice

Summary

INTRODUCTION

With the adoption of the Convention on the Rights of the Child (CRC), children were specifically recognized in international law as holders of a broad range of rights. While some of these rights overlap with those applicable to all persons under other international and regional human rights instruments, a number are specific to children. Article 12 is considered the ‘linchpin’ of the CRC, elevating children from objects of charity to independent rights-holders with entitlements to participate in all decisions affecting their lives, including those arising in judicial processes.

This contribution focuses on the issue of legal representation as a necessary element of Children’s access to, and meaningful participation in, family justice processes. It also considers the significance of participation for Children’s interests and contribution towards more sustainable outcomes, and critically analyzes legal methods by which Children’s views may be placed before family courts, including guardians ad litem, amicus curiae, and instructional advocates. This contribution concludes that the child advocate model of representation aligns most closely with human rights principles, empowering children to participate in fundamental decisions about their own lives, achieving not only eff ective realization of Article 12 of the CRC, but substantive and procedural access to justice.

THE RIGHT TO LEGAL REPRESENTATION: INTERNATIONAL AND REGIONAL HUMAN RIGHTS STANDARDS

INTERNATIONAL INSTRUMENTS

CRC and General Comments

As a general principle of the CRC, Article 12 is of ‘fundamental importance’, integral to both the interpretation of all other rights and the implementation of the Convention as a whole. Although the CRC does not make explicit reference to a right to legal representation for children in civil court processes, a purposive reading of the Convention supports such an interpretation, starting from the preamble which recognizes that children, by reason of their physical and mental immaturity, require special safeguards and care, including appropriate legal protection.

In addition to Article 12, Articles 9(2), 21(a), and 25 indirectly contemplate Children’s participation in decision-making in the child protection, parental separation, and adoption contexts. To the extent that these decisions are made in judicial or administrative proceedings, the child may require legal representation to ensure their views are heard and interests protected.