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Sunday, November 11, 2012

The voice of the child in court - Is it working?

For a possible research project, combined with some thoughts that have been brewing during some recent court cases I have been involved in, I have been thinking about the ways in which children are represented in family courts. It seems that the two most common methods are through a Guardian ad Litem (a person appointed to represent the views of the court) or through a lawyer appointed to represent the child. Some writers have framed that allowing the child to have a voice in court is a matter of their human rights.

The role of the Guardian ad Litem has been described by one such person in Florida as having 5 principle roles.

  • Investigator
  • Monitor
  • Spokesperson
  • Reporter
  • Protector
This seems a good way to view what should be happening. Yet, I have seen some rather odd representations of children in court these days. Some of the problems include lawyers representing children too young to properly give instruction. For really small children, that can be quite problematic. For pre-elementary and elementary school children, that means developing a relationship with the child and really getting to know what the child needs. That takes time and may be beyond the availability of a busy lawyer.

Not long ago, I was involved in a case where I felt that the children's voice was completely absent even though a lawyer was appointed. Virtually no questions were asked by this person who appeared to have never even seen the children who were young. I worry that children in those cases have no voice at all. Perhaps even worse, they may have a voice of the lawyer who simply represents what that person thinks should happen, perhaps based on personal beliefs.

In another case, I have seen a lawyer representing a child in what appears to be the voice of one of the parents. The statements made are highly reflective of that parent's views, even down to the specific perspective. One wonders if the lawyer has taken time to really speak with the child and if the concern of an unhealthy alliance between the parent and the child has been considered.

I very much like how a court in Utah framed the role:

"It is the Guardian ad Litem's duty to stand in the shoes of the child and to weigh the factors as the child would weigh them if his judgment were mature and he was not of tender years."
      - J.W.F v. Schoolcraft, 763 P.2d 1217, 1222 (Utah Ct. App. 1988)

As social workers, we might need to begin talking about the quality of what happens for children in court. I am struck that I have not been able to find anything but a tiny body of literature that has bothered to ask the children how did it go. How well did they feel represented? Let's start asking!

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