Academic Literature - Articles on Child Representation
Summary With Abstracts
Our library research into the legal, social and international literature identified the following articles which we reviewed and analyzed in our Literature Review.
Date Citation
The article begins with a due process analysis concluding that children are legally entitled to counsel and continues by presenting examples of federal and state legislation, court decisions, and public policy arguments that support this right. The article then goes a step further to advocate for a traditional, client-directed model of representation, which empowers children and leads to better judicial decision making. Finally, the article discusses the impact of high caseloads and lack of training on attorney performance. This article serves as an important addition to the academic literature examining the need for and role of the child's attorney in dependency proceedings.
Representing children in custody proceedings has often been the mental safe harbor for family law attorneys who are regularly exposed to the worst side of their adult clients in custody litigation. In the last several years, however, litigation and the legislative process have transformed the child counsel landscape, and the attorney who accepts appointment as a Best Interest Attorney is well-advised to develop a distinct set of protocols to insure that he or she provides quality representation to the minor client in accordance with these changes.
This article will briefly highlight areas of concern and certain practices that have proven effective over time, but will only discuss representation provided pursuant to appointment as a Child's Best Interest Attorney under Maryland Rule 9-205.1, not Child's Advocate Attorney nor Child's Privilege Attorney.
Criminal Justice Section recently obtained a grant from the Department of Justice to enhance the response of legal professionals to child abuse victims. The Section proposed several policies that were recently adopted at the ABA Midyear Meeting in February 2009 to facilitate this result. (ABA Policy 101D.) The policies urge jurisdictions to ensure that child victims of criminal conduct have access to specialized services and protections such as those provided by child advocacy centers, as well as prompt access to legal advice and counsel. The resolutions also urge support of legislation to provide that child victims of criminal conduct have independent attorneys who can assist them in obtaining applicable victims' rights such as those provided by 18 U.S.C. § 3771, and age-appropriate accommodations such as those provided by 18 U.S.C. § 3509, if the court makes a finding that the child's interests are not otherwise adequately protected. In addition, the resolutions urge that pilot programs be established in which rights and protections for child victims of criminal conduct are protected and enforced, including the appointment of attorneys on a pro bono or compensated basis. Finally, bar associations, law schools, victim rights organizations, child rights organizations, and courts are urged to collaborate to develop procedures for courts to appoint attorneys for child victims of criminal conduct and to adopt standards of practice and training requirements for those attorneys who clarify their roles and responsibilities. While these American Bar Association (ABA) policies are designed to assist all child victims, this article will concentrate on sexual abuse victims, who compose a large and particularly vulnerable category of children who interact with the criminal justice system.
This Article is based on a transcript of a break-out discussion which took place at An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, held at Touro Law Center, Central Islip, New York, in March 2008. The discussion was moderated by Karen L. Nicolson, Michael Williams, and Toby Golick.
This Article assesses the needs of various special populations and the possible strategies and solutions to create change through enacting a civil right to counsel. The Article is intended to capture information and viewpoints of the people who participated in the break-out discussion at the conference. Therefore, the information and viewpoints presented below do not necessarily represent the views of Ms. Nicolson, Mr. Williams, or Professor Golick.
On November 1, 2008, the New York State Bar Association House of Delegates approved a resolution affirming their commitment towards establishing a civil right to counsel in New York State. One of the issues identified is a child's right to representation not only in criminal, but also civil proceedings. Unlike other litigant groups, children have a statutorily established right to council in civil proceedings. However, as the white paper, adopted by the New State Bar Association, details, there are gaps in children's advocacy throughout New York State. While significant steps towards improvement have recently taken place, there is still a long road until a collective voice for children is heard as loudly as their adult counterparts. This Comment explores the current state of the law and advocacy models in order to analyze what has been done towards improving a child's right to counsel, as well as possible future steps. It is this author's hope that the voices of children one day resonate as loudly as other politically powerful groups in New York. The children are New York's future, and their lives need to be improved.
When children are the subject of dependency, adoption or guardianship proceedings, protecting those children requires attention to a variety of interests. Children need a voice: an advisor and an advocate whose judgment is unclouded by conflicting interests. Courts need information that the adult parties to the proceedings may not easily discover or willingly provide. The families and social services agencies need monitors and mediators. The attorney guardian ad litem (GAL) is, in many situations, called upon to meet all these needs. During the past decade, major academic conferences and professional organizations have devoted thousands of hours to developing standards of competence and calls for attention to the unique and critical demands of child representation.
While states and the federal government have recognized the need to attend to all of these interests, many have been unwilling to commit the resources necessary to truly meet the full range of interests. The result is a system that creates pressures for and tolerance of mediocre or passive representation, or what one judge has referred to as a “potted plant” theory of representation of child clients. Evaluative reports of appointed counsel indicate that competence has been a significant concern in representation of children. Indeed child advocates themselves have raised concern about competency. In Connecticut, for example, child advocate attorneys filed suit against the state alleging that systematic inadequate representation by court appointed counsel was violating the rights of the children and families involved in child protection cases. That is not to say that all attorneys representing children are anything other than dedicated professionals. For many, however, the system simply does not provide the clarity or resources for long-term quality representation.
This essay explores the dimensions of this problem of competence and diligence in children's representation. First, the practical realities of poor funding and heavy caseloads are described and the ethical obligations of attorneys in these circumstances are explored. Second, the article examines the standards and scope of training requirements being adopted by the states and contrasts these standards to the actual demands of child representation. Finally, the article explores the confused role definitions of attorneys in child welfare representation. The article suggests why that confusion persists and how it may cause attorneys to minimize some of their responsibilities in these cases. The article concludes with some practical suggestions for attorneys in these roles to minimize the pressures toward incomplete representation.
This article sets forth some critical observations about the role of children's attorneys in reinforcing and challenging socio-legal norms, particularly those norms that are not child-driven or child-centered. More concretely, it critically explores the role of children's lawyers in promoting the individual and systemic interests of their youthful constituents, most of whom receive lawyers because they are caught in systems that predominately serve poor children and children of color. The article first reflects on the indeterminacy and contingency of the category of children, checking our natural tendencies to idealize children and childhood. The second section describes the children's bar, examining its legalistic approach to children's problems and their solutions, which contemplate children in isolation from their families and communities. This approach contrasts to that of attorneys who advocate for social and economic justice, advocacy with more potential to improve the material and social conditions of children and their families. The third section notes the decline in children's well-being, despite the growth of a children's bar, and sketches five thematic observations that might account for this anomaly and raise questions regarding the utility of children's lawyers and the roles that they might occupy. These observations relate to the multiple gulfs between children and attorneys, and the limitations of rights-based advocacy, particularly for clients who do not have the authority to define justice in their own terms. The final section explores how children's attorneys are beginning to critically assess their dominance and their approaches to the legal representation of children, and to develop methods to ensure that the child's viewpoint is expressed. The article concludes with a suggestion that lawyers pursue different methods for achieving justice for children that are more holistic and reflective of the norms of child clients, their families, and their communities.
This article explains the major policy debates underlying the Representation of Children Act and the rationales for the positions taken in the Act. Part I provides a brief background on the drafting history and scope of the new (and newly amended) Act. Part II gives an overview of state law, and Part III summarizes the competing standards for children's representatives that have been proposed by various professional groups. Part IV explains the Act in more detail, describing its basic structure and intended operation. The focus is on the three categories of children's representatives authorized by the Act and the role of courts in administering the Act. Finally, Part V explores more fully the policy positions taken in the Act and the underlying rationales, with particular emphasis on the “best interests attorney” option in the statutory scheme.
This article critiques The Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (URCANCPA), claiming that it is a piece of paternalistic legislation that, while ostensibly well-intentioned, undermines the rights of children, violates the Model Rules of Professional Conduct, and sets the law regarding the representation of children back twenty years. Despite vociferous objections, the drafters of URCANCPA have insisted on an approach to child representation that does not comport with Model Rule 1.14 and moves away from the trend in many states to provide the child with a client-directed lawyer in abuse and neglect proceedings.
The proposed Working Draft of a Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings (Working Draft) focuses on the representation of children in abuse and neglect cases and is consistent with both the ABA Standards on the Representation of Children in Abuse and Neglect Cases (ABA Abuse and Neglect Standards) [FN5] and the ABA Model Rules of Professional Conduct (ABA Model Rules). While there are a number of different thoughts around the country on the role of lawyers for children in abuse and neglect cases, any model act adopted by the ABA must conform to standards and rules already established by the ABA.
This Note proposes that a client-directed attorney emerges as the option best suited to refocus reform efforts to consider children first. Part I discusses child representation reform efforts over the last twelve years. Part II discusses the discord between client-directed and best interests advocacy, as well as between the specific framework of existing standards and the growing movement toward client direction. Part II next examines how current lawyer-focused standards curtail children's participation and direction, why this curtailment is harmful, and what assumptions and biases underlie these standards. Part III identifies the informal nature of family court as a principal source of the general laxity in maintaining client direction in child advocacy, by way of its heavy deference to professional decision making in dependency cases. Part IV proposes that, in light of these circumstances and the need to refocus on children, children's lawyers should assume roles as client-directed attorneys. Part IV also provides justifications as to how such a proposal would maximize client-directed advocacy without sacrificing the rehabilitative nature of family court.
The article discusses issues involved in child custody and visitation cases including guardian ad litem (GAL) role and selection. Several suggestions are given such as availability of a sufficiently funded social worker staff in every county, coordination between a child's lawyer and the assigned social worker in forming an opinion, and requiring related training from the lawyer which would enable him to understand child development and other issues. Funding is identified as a major drawback in providing optimum legal services for children.
The revised version would also require the attorney to request appointment of a guardian ad litem, a discretionary act under the ABA Abuse and Neglect Standards, if the child's wishes are seriously injurious to the child. The ABA Custody Standards build on the Abuse and Neglect Standards, continue the client-directed model embodied in the Abuse and Neglect Standards, but also create the role of a "best interests attorney," who is not bound by the child's directives. Unlike the AAML Standards, the ABA Custody Standards envision a robust advocacy role for the best interests attorney, with the only (but very significant) difference between an attorney functioning in that role and one functioning in a client-directed role being that the best interests attorney may determine the position to be advocated, with the related ability to use, without disclosing, client confidences. Determination of the position taken, however, is a matter of objective determination of the child's legal interests. The ABA Custody Standards also require attorneys to establish and maintain a relationship with their child clients, whether acting as a child's attorney or as a best interests attorney. The Symposia In 1995, Fordham University Law School convened the Conference on Ethical Issues in the Legal Representation of Children, which culminated with the development of a set of recommendations. No decision by a judge, any more than any conclusion by a scientist, can be better than the data upon which it is based, and adding the child's own perspective can only help to inform a better decision-making process.
Goodman et al examine the types of attorney representation for maltreated children involved in juvenile court actions in the state of California and evaluate these types of representation with respect to children's experiences in foster care. Findings indicate that, in the majority of counties in California, children were represented by the public defender's office or by a panel of court-appointed attorneys. Approximately equal numbers of counties employed county-affiliated (i.e., District Attorney, public defender, county counsel) and independent (i.e., private firm, panel of court-appointed attorneys) types of representation (47% and 52%, respectively). Further analyses suggested that children in counties employing independent types of representation tended to experience fewer foster-care placements than did children in counties employing county-affiliated types of representation. This relation remained significant when potentially confounding variables were statistically controlled. Results indicated that some types of representation, specifically, private firms and court-appointed attorneys, were associated with one better outcome for children.
This Article explores the advantages and disadvantages of child well-being as a child welfare system advocacy framework. It examines the use of the concept of child well-being as a social indicator and the importance of poverty rates to the child welfare system. It also examines the use of child well-being as an outcome measure for the child welfare system, in particular in Child and Family Service Reviews (“CFSRs”) and court evaluations. The possible impact of the child well-being concept is considered in the context of several programs, including income supports and problem-solving courts. The Article concludes that, overall, well-being provides a valuable framework for the future of child advocacy.
Every day approximately 500,000 children across the United States wake up in foster care, most in foster family homes, though many others in group homes and institutions. These children entered the state foster care system as innocent victims of abuse or neglect occurring in their birth homes. As wards of the state, they depend completely on the government to provide for their essential safety and well-being and to reconnect them with a permanent family, hopefully their own.
Though state child welfare agencies possess fundamental legal obligations under the United States Constitution and federal and state statutes to provide adequate care to all children in foster care, they are all too often failing in this vital mission. High caseloads, insufficient caseworker training and compensation, a combination of unstable and ineffective agency management, and a lack of resources plague foster care systems from coast to coast. As a result, children who were removed from their homes for basic protection actually suffer continuing harm in state care.
The federal government has sought to improve the performance of state foster care systems through legislative reforms that have subjected these systems to the oversight of family court judges and federal auditors. Though well-intended, these federal reform efforts have not achieved the desired result. The same structural impediments that historically have prevented child welfare agencies from delivering quality services similarly have blunted the impact of federal reforms.
Child advocates have utilized class action litigation to ignite and sustain systemic reform. These class actions suits, typically involving claims for violation of substantive due process and statutory rights, have resulted in court enforceable consent decrees that have resulted in improved care, services, and permanency outcomes for children by obligating state agencies to undertake essential structural improvements. This Essay will present the disappointing history of the federal reform efforts and the promise that structural reform class actions hold for children in foster care.
Lawyering for children does not lend itself to absolutes. Children of any age have significant deficits of cognition and experience that can make client-directed lawyering problematic. At the same time, a lawyer who disregards the expressed wishes of a juvenile client may unduly discount the child's knowledge, perspective, and need for voice. Moreover, other legal players in the child welfare system, including child welfare workers, legislators, courts, parents, and attorneys themselves, also have deficits and blind spots. Too often, these blind spots reinforce inequalities of race, culture, and class. The child's lawyer should acknowledge the local competence of all of the players, but also recognize the limits of that competence.
The debate about confidentiality in the representation of children follows this course. Some jurisdictions mandate the reporting of child abuse by lawyers. In contrast with this absolute, some commentators have argued that the lawyer's duty of confidentiality with respect to child clients should track the duty owed to adults. Here, too, however, context should trump rigid application of rules. This article, which focuses on representation of children in abuse and neglect proceedings, seeks to outline such a contextual model.
Children who have been victims of abuse and neglect need effective advocacy to protect their interests in a dependency proceeding. While every state's law provides for the appointment of child advocates in these proceedings, there is an ongoing debate over who should serve as the advocate--lawyer or layman--and whether the advocate's role is to represent the child or the advocate's view of the child's best interests. Congress has weighed in on this debate and stated that each child in dependency proceedings must have an advocate and that the advocate must “make recommendations to the court concerning the best interests of the child.”
This article makes the argument that permitting non-lawyers to provide the type of advocacy mandated by federal legislation and necessary to achieve good outcomes for children promotes the unauthorized practice of law. The article concludes with a recommendation that the language of the Child Abuse Prevention and Treatment Act (CAPTA) be changed to require the appointment of an attorney for every child in a dependency proceeding, and that the attorney represent the child in a traditional attorney-client capacity.
This article will refocus the debate regarding a basic question about how to best represent children's interests in dependency proceedings: if our judicial system is premised on the concept that all parties should be zealously represented when appearing before a judge who makes the ultimate decisions after reviewing all the facts and law presented, why treat children differently?
In its Preamble, the Model Rules of Professional Conduct (“Model Rules”) emphasize that, as both public citizens and members of a “learned profession,” lawyers are entrusted with an ethical responsibility to devote their training and civic influence to ensuring “equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” Beyond the more obvious concern of providing indigent adults with legal representation on a pro bono basis, studies and case law across the country reveal an equally urgent public need that remains tragically unaddressed: consistent, zealous representation of minor children by qualified attorneys in abuse and neglect proceedings. The quiet crisis of violence and mistreatment, cycling through shielded home environments into which policymakers are reluctant to intrude, is exacerbated by the legal profession's failure to provide effective services to the majority of America's four million children reported abused and neglected each year. Attorneys representing children are often underpaid, overworked, minimally supervised, and poorly trained to address the variety of developmental, psychological and other service-related needs exhibited by victims of abuse and neglect. Part I of this Comment provides a brief synopsis of the nature and severity of child abuse and neglect in America today. Part II details the nature of the pertinent CAPTA GAL mandates and their uneven, disorganized implementation among the majority of states. Part III asserts that state bar associations, through interpretation of professional ethics rules in light of competency and pro bono ideals modeled on CAPTA's explicit vindication of children as rights-holders, can improve the consistency and effectiveness of statutory objectives via an ethical avenue. Specifically, increased pressure among state bar associations and ethics committees to, firstly, increase lawyer participation in the GAL process on a pro bono basis under Model Rule 6.1 and, secondly, read into state adaptations of Model Rules 1.1, 1.4, 1.6, and 1.14 client-empowering “best interest” standards on behalf of minors, would provide child victims with increased options among competent advocates.
The selection of Children and the Law as the topic for the James R. Browning Symposium in 2004 says something powerful about the status of the practice of law for children and youth. Not so many years ago, this topic would not have been on the radar of symposium organizers, or had it been, it would not likely have been deemed worthy of such important academic attention. But children's law exists in 2004 as a recognized legal specialty with sufficient rigor to warrant law school symposium scrutiny. Similar to the development of pediatric medicine, the field of children's law has developed into a full academic and practice concentration. Through the development of social awareness, substantive law, law school curricula, standards of practice, and career paths, what was once a fringe professional interest and a cause of social progressives has become a legal specialty.
The importance of the development of children's law is more than academic. Children and youth represent a significant segment of the population in need of legal services, which has gone unmet for many years. In the juvenile delinquency arena, roughly 1.8 million cases are filed each year. There are even more child welfare cases in response to the approximate 4 million children who are reported abused and neglected annually. For many of these children, the legal proceedings in which they are involved determine the course of their lives and may be a matter of life and death. As lawyers who carry a special responsibility to promote justice, this is a worthy and noble focus of our attention.
The failure to provide legal services to this population is devastating. Just outcomes are dependent upon high quality legal advocacy. Unrepresented parties tend to fair poorly in our system. This is particularly true for children who, among various types of clients, are least likely to be able to speak for themselves. Yet historically, this argument has failed in the face of the view that children are not entitled to, or do not need, traditional legal counsel. This view is changing. We are moving from a legal system that valued children out of an occasional sense of benevolence to a system that recognizes the value of children as rights-based citizens.
Precisely where this movement towards recognizing children as rights-based citizens will lead is not clear. This article attempts to trace the evolution of the practice of law for children and provide some guidance for the decision-making that lies ahead in the development of an emerging and important area of law.
Students trained under the Langdell system are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs.
Increasingly, teaching a future lawyer in a child advocacy clinic without a social worker is like teaching a future horticulturist without live plants or a future architect without blueprints. Much has been written in the international clinical literature about the justification for interdisciplinary collaboration in legal clinics. The lawyer-social worker partnership is a prime subject of discussion. This article makes a case-based argument for a lawyer-social worker partnership in a child advocacy clinic by demonstrating the value of interdisciplinary collaboration that engages the social worker's expertise, practice principles and skills in a hypothetical case.
This article is a companion piece to Taking Hold of the Elephant in Child Dependency and Neglect Cases, an article written by the lawyer-author in which she describes the use of the social work techniques of ecosystems diagramming and genogram development to assist student attorneys in representing children in child dependency and neglect cases. She credits the contributions of thesocial-work author in engaging her interest in these techniques. The lawyer-author's experience in using these social work techniques and in writing Taking Hold of the Elephant in Child Dependency and Neglect Cases left her with the pervasive feeling that her students would benefit from first-hand exposure to a social work professional instead of second-hand transmission of social work principles and approaches offered by a lawyer who is not a social worker. It is from that perspective that the collaboration on this product arose.
Part I of this article will trace the traditional roots of legal education with its focus on theory and the case method, the first wave of legal education. It will describe the refinement of legal education in a second wave through the teaching of legal skills by way of clinical legal education, a transition that has emanated from the changing expectations of the legal profession regarding the performance of the roles and tasks of a lawyer. Part I will then place this discussion in the context of what some have characterized as the third wave of legal education, with its focus on, inter alia, interdisciplinary education, creative problem-solving and therapeutic jurisprudence. In an effort to introduce the benefits of offering a child advocacy clinic jointly with a social worker, Part I will also describe parallel developments in social work education, which now features frequent instruction about the law and legal processes.
Part II will use a hypothetical child dependency and neglect case, “Bonnie's Case,” to explore how the various waves of legal education might have approached this case and how the use of traditional methodologies prove to be incomplete. Part II will suggest that the infusion of social work principles and practices into a child advocacy clinic offers avenues for more sophisticated problem-solving in the third wave, especially when these principles and practices are viewed from a therapeutic jurisprudence lens. From the perspective provided by Bonnie's Case, the co-authors will discuss in Part III the case-based rationale for enrichment of the clinical curriculum through such interdisciplinary instruction, as well as the challenges of this approach.
Thousands of children are abused or neglected each year in New Mexico. Some of these children end up in protective proceedings before the children's court. Traditionally, these children have been represented before the court by a guardian ad litem. In 2005, however, the New Mexico legislature amended the state's Abuse and Neglect Act, requiring the appointment of a traditional lawyer, called a youth attorney, for children age fourteen years and older. Guardians ad litem and youth attorneys serve very different roles: the former represent the best interests of the child as determined by counsel, while the latter represent the expressed wishes of the child as directed by the child. The child advocacy community does not agree on which of these two methods-the advocate directed “best interests” model or the client directed “expressed wishes” model-best serves children, or even if either model is best in all situations. Now that the New Mexico legislature has chosen its side in the debate, though, the state should focus not on which approach is best, but rather on ensuring that the chosen model meets the needs of the children.
To that end, this Comment examines the impact of attorney representation on child protective proceedings, taking into account the effects of New Mexico statutes, court rules, and constitutional provisions. Each of the parties involved in these proceedings-children, attorneys, judges, social workers, and others-will be affected by the 2005 amendment.
This Comment focuses on two issues. The first is an examination of the role of a child's attorney, as defined by the statutes and rules of professional conduct. The Background section outlines the best interests (advocate-directed) and express wishes (client-directed) models of child representation, as well as the relevant statutes and rules in New Mexico. The Analysis section then examines the shortcomings in applying current laws to the youth attorney rule and provides recommendations for implementing the rule in practice.
The second issue raised by this Comment concerns the so-called “pending cases” clause, a constitutional provision unique to New Mexico that could have the effect of blocking application of the youth attorney rule for some children. The Background section reviews the case law related to this clause and suggests a single doctrine to resolve the inconsistencies in the law that have developed over time. The Analysis section then shows how a careful interpretation of children's common law rights to representation avoids any conflict between the pending cases clause and the youth attorney rule.
Part I of this Article summarizes the Kenny A. litigation and provides the background context for the District Court's decision. Part II presents the District Court's decision, summarizing the strengths of the Court's opinion and introducing some areas where it might have gone further. Part III adds to Kenny A. by presenting additional and alternative theories and arguments for why children have the right to a lawyer in dependency proceedings. This analysis is critical because advocates across the country have expressed interest in bringing litigation similar to Kenny A. in other jurisdictions, but the court's analysis may not be sufficient to prevail in future cases. Moreover, scholars who seek to make the theoretical case for a broader construction of children's right to counsel (or children's rights in general) may wish to go beyond the analysis contained in the Kenny A. decision. The Article closes with some strategic thoughts in Part IV for how children's advocates might construct their next right-to-counsel lawsuit.
This Comment evaluates the role of CASA volunteers in Texas court-ordered proceedings in light of the 2005 revisions. Part II presents a broad overview of the origins of child representation. Next, Part III discusses the history and current state of the National CASA Association (NCASAA) and the TCASAA.Then, Part IV addresses the Texas legislative movement, highlighting the former law and its problems, the new amendments and additions, and their impact on child representatives and the child protection system. Part V presents a review of the influence CASA and its volunteers have had in the court system and upon children nationwide. Finally, before concluding, Part VI explores the reasons why the Texas Legislature should not broaden CASA programs from Texas CPS cases to encompass private scenarios, including divorce, termination of parental rights, access, and paternity proceedings. Ultimately, the 2005 amendments provide Texas CASA and its volunteers with greater opportunities to mold the hearts of victimized children both in and out of the courtroom.
Who represents a child's interests? We generally believe that the parents have primary responsibility for a child and that, where parents are unable to assert responsibility, the state acts in parens patriae to protect the child's interests in a series of different contexts. But does the state always do this? What are the parameters of the state's role in representing and protecting children's interests? Although the role of attorneys and guardians ad litem in representing children has received a great deal of attention, [the role of the state—outside of a few settings, such as the foster care system—has been more presumed than explored. The state, as the ultimate third party—and outsider—to the parent—child relationship, affects the very definition of the family, and shapes the rights and status of parents and children.
In examining the role that third parties enjoy with respect to children and the role those claims play in defining family, this paper explores how the interests of minors are represented in both national and international law in three contexts: first, in restricting the abortion rights of minors, the state claims to be protecting them; second, in allowing parents to decide who will act as caretaker for their children if both parents are dead, the state defers to parents' wishes; and third, in countries where the state cannot protect children and the exercise of rights in court is virtually meaningless, it is nongovernmental organizations who speak on behalf of minors.
There is already skepticism about the state's ability to represent children's interests in a variety of contexts. Many have challenged the state's implementation of the abuse and neglect system, with questions about race and class, and others have challenged conventional norms suggesting that the state is deferential to the nuclear family. In examining the state's role in speaking for children, this article serves as both a critique and a defense. The state's actions and efficacy in advocating the interests of minors is context-dependent; there are contexts in which the state's stated agenda of protecting children really is primary, while in other situations, the state has another agenda or the state may be altogether incapable of acting at all. This article briefly reviews the development of state intervention on behalf of children and possible legal and conceptual frameworks for examining the rights of, and representation of, children before turning to the three different contexts for examining the efficacy and parameters of the state's role.
In this article, I will recount the history of child welfare practice in New York City. I do this because it is a history I know best, having practiced there since I graduated from law school in 1971. I also believe this history is pertinent to developments in many other parts of the United States. Part II will recount a history of children's representation in child welfare cases in New York City which will be compared with the history of parental representation in the same city in Part III. In Part IV, I will explore the roles that state officials expect from lawyers for children. The final two sections will analyze how “child welfare” has come to be defined in the United States and, in Part VI, I will discuss what the state has to gain from being able to publicly proclaim its commitment to ensuring legal representation for children in child welfare cases.
It is a mistake to try to develop a single lawyer role for children in child welfare cases which tries to accommodate their developing capacities from infants to articulate teens. The older child needs a traditional attorney; the youngest child, incapable of directing counsel, needs a substitute to define and advocate for his or her best interests. We should adopt different standards for the different advocate roles. Trying to define a single lawyer role for children of all ages and all capacities is an impossible task. A better approach towards recognizing and accommodating the child's developing cognitive abilities and judgment would be to adopt a bright line age test, say at seven. At age seven (or eight or ten) and above the youth would receive a client directed advocate, that is, a child's attorney, and below the bright-line age a child gets a best interests (or substituted judgment) advocate. The court should appoint either one or the other, or both, under certain circumstances as set out in law. Both roles should be clearly established in law with duties that are aggressive and active.
We are accustomed to drawing these clear bright age lines for the various rights and responsibilities of living in our society. At sixteen a youngster is able to drive, at eighteen a person can vote, at twenty-one one can purchase alcohol, and at thirty-five a citizen is eligible to serve as President. Similarly, we all know people who, at the appointed age, are not able to handle the responsibility well and others who are ready years before the fixed age. Yet we have chosen, in these other aspects of our social contract, to use age as a proxy for maturity and judgment. We have determined that a case-by-case assessment of an individual's ability to handle the responsibility would result in a process that is too cumbersome and a result that is too idiosyncratic and inconsistent to be fair. Similar reasoning applies to determining what sort of legal advocate a child should be assigned. The following sections will demonstrate that the limitations of the bright line age test are far fewer than the perils of either a one size fits all approach to legal representation or an ad hoc, case by case determination as to whether a child receives a client-directed or substitute judgment legal advocate.
Part II discusses why neither the client-directed nor the best interest model of legal representation is adequate for all children at all stages of development. Part III describes the role of the client-directed attorney for the older child and addresses the older but immature or mentally handicapped children not fully capable of directing counsel. Part IV describes the role of the substituted judgment or best interests advocate and considers the younger child whose level of maturity and capacity might warrant greater autonomy. Part V addresses the concern that the presumptive bright line might be set too low at seven because children and youth of all ages, even fourteen and sixteen years old, might need a best interests advocate. And Part VI addresses the concern that the presumptive bright line might be set too high because the interests of all children require that their rights be protected by a client-directed attorney.
The Child Abuse Prevention and Treatment Act (“CAPTA”) has been recognized as very influential in the effort to provide children with advocates when they have been victims of abuse and neglect. Due to CAPTA's mandates, each state is required to provide advocates for children in dependency proceedings where decisions will be made about the most important things to children: whether and how often they will see their families; where they will live and attend school; whether they will have to leave their friends and homes; and whether they will be living with strangers.
The UNLV Conference recommends strengthening the role of the child's voice in CAPTA by mandating that CAPTA comply with the Convention on the Rights of the Child (“CRC”). The CRC requires a child be given the opportunity to be heard in any judicial proceeding affecting the child. The difference between CAPTA and the CRC is that CAPTA requires an advocate to recommend what is in the best interest of a child, whereas the CRC requires that a child be given the opportunity to be heard. While I support the Conference recommendation to strengthen CAPTA to bring it into compliance with the CRC, the recommendation, even if adopted by Congress, is meaningless unless the representation provision of CAPTA is enforced. Many states do not provide the child representation required by CAPTA. Thus, unless states are required to comply with the mandate of CAPTA (which is now over thirty years old) to provide representation to these children, changing the language regarding the nature of children's representation will not make a difference.
This Article will discuss CAPTA in Part II. Following this introduction of CAPTA, Part III will discuss how states are complying with CAPTA. Then, there will be a discussion of other child welfare enforcement mechanisms in Part IV. Part V will discuss whether the child representation provisions can be enforced through litigation. Finally, the article will recommend that, if CAPTA is to be revised, it provide for better oversight and enforcement of its child representation provisions, that the Department of Health and Human Services (“HHS”) enforce CAPTA regardless of statutory changes, and that advocates use litigation to enforce the representation mandate of CAPTA.
The UNLV Conference provided the opportunity for child welfare advocates across the country to meet and discuss issues surrounding the representation of children in the child welfare system. Many thoughtful recommendations were made about raising the quality of representation that children are receiving. The Office of the Cook County Public Guardian strongly agrees that children should have an attorney in abuse, neglect, delinquency and other proceedings, however, we do not agree with the recommendation that the role of counsel be limited to a client-directed model. While the Recommendations recognize that younger children may not have the capacity to direct the course of the representation, the conference's finding that children older than seven would usually have the capacity to direct the litigation is not supported by the experience and knowledge that the Office of the Public Guardian has gained over the last twenty years. In our experience, the functions of the guardian ad litem are a crucial component of representing children, in order to ensure that the best interests of the child are advanced. Moreover, an absolute age rule does not recognize the uniqueness of every child and the uniqueness of each child's situation.
Representing children in child protection cases is as rewarding as it is difficult. The attorney-client relationship may last for years as the children's cases wind through the court system. Over the years, the children and the issues affecting their lives change. Because children's capacity changes with their age, their life experiences, their education, and the nature of the decisions that they are being asked to consider, the role of their attorney must also change. Every case is not only unique, but also constantly changing with the child, and lawyers must be able to adapt and serve accordingly. The attorney/guardian ad litem model allows the attorney the needed discretion to serve the individual needs of the child client. This article is a brief review of child developmental and legal bases for the model as well as a description of the model.
This response paper will defend the triumph of vision at the UNLV Conference by examining the interrelationship between idealism and realism in the definition of lawyers' roles and the importance of idealized visions to the process of reforming dysfunctional systems. I suggest that the vision of lawyering for children sketched in the UNLV Recommendations--though based in idealism--is both deeply realistic and ultimately practical. I thus affirm the choice of the group of idealists who stood together for a few days in modern-day Babylon to keep their eyes trained on the vision of Zion as they crafted recommendations for making the legal systems in which they practice, study, and teach--and about which they deeply care--better for children and their families.
Working in the best interest of children in abuse and neglect cases is a daunting task for both lawyers and social workers. The legal system is inadequate to meet the myriad needs of children and families in crisis. Yet only under the authority of the legal system can social work and other mental health professions intervene in families on behalf of children. Collaboration is critical, but collaboration does not come easily. The juvenile court system is one that has been buffeted historically by the competing values and methods of social work and law. The institution and its rules are still evolving today, sometimes quite dramatically. This dynamic environment means that even if competition for “ownership” of the system can be set aside; collaboration will be challenged by ever-changing expectations.
The adversarial system's focus on “winning and losing” fails to adequately take into account the relationships that are at the heart of most child abuse and neglect matters. The American legal system often focuses on individual rights and responsibilities and is not very accommodating of a more inclusive view of a collective “family” right. The adversarial system's focus on the individual (bad parent, victim child) neglects the relationships among many individuals, a critical component of permanency. This is particularly troubling in the context of a system where the law itself focuses on reunification and families, rather than on individuals. Furthermore, the adversarial system's focus on individual rights has led some to conclude that when the focus is on an individual, the individual whose rights are protected are those of a parent as opposed to a child. Finally, in the area of child welfare, “rights” must be viewed within the context of child protection. The adversarial system distorts the focus by pitting one party's rights against another's.
Observers of the juvenile court system have long noted that the stakeholders in the system misunderstand or confuse their own roles and the roles of others. The source of these misunderstandings has been less thoroughly explored. Based in large part on a comprehensive study of social worker and attorney interaction undertaken by the author, in collaboration with a social worker, this article will highlight some of the problems encountered by professionals working in this truly interdisciplinary field and will suggest methods for improving collaboration. Studies of social worker-attorney interaction, including the author's own, reveal that the professionals involved often lack a shared basis in language, ethical precepts and world view which leads to an inability to resolve those misunderstandings. In Part I, the article will describe the study. Part II will examine the background, structure and history of the juvenile and family courts, emphasizing the tensions between social work and legal visions of the court. Part III will examine the different roles of lawyers within the child protection system, demonstrating the many ways that role confusion and ambiguity interfere with effective shared decision making. Part IV will examine the role conceptions held by both social workers and attorneys within the system and describe the difficulties both groups have in reconciling their competing views of the goals and methods for child protection. Finally, in Part V, the article will suggest a variety of reforms that could facilitate more effective interdisciplinary cooperation between social workers and lawyers within the child protection system, including a description of the cross-training program designed by the author and her social worker partner.
In May 1995, after being removed from his biological family, Lucas's foster parents brought their seven-year-old foster son unconscious to Manatee Memorial Hospital, claiming he had self-inflicted the injuries that eventually killed him. The medical examiner did not believe that Lucas could have inflicted the more than two hundred injuries to his twenty-six pound body, including fractured ribs and scars on his penis or the final lethal blow to his head. It is difficult to imagine how Lucas, and hundreds of other abused children, must have felt-forced to stay in a situation he did not want to be in; one in which his very life was in danger; one which ultimately resulted in his death. But consider the converse, how a child would feel to be forced to leave his family against his wishes, to go live in a “better” situation. Guardians ad litem in juvenile abuse and neglect cases must make very difficult, complicated decisions having lifelong impact on the children they represent. Given the nature and importance of this role, it is disturbing that many guardians ad litem have very little training or education in children and families, receive little compensation for their work, and often are reported to provide substandard representation to their child clients. Many courts have appointed individuals as guardians ad litem without requiring prior training that adequately addresses the specific types of responsibilities they will undertake. In such situations, the legal system's protection of children may suffer.
“Guardian ad litem” (“GAL”) has been defined as “a guardian, usually a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party.” The traditional guardian ad litem role requires counsel to represent the assigned juvenile throughout the proceedings and make a recommendation to the court after determining what is in the best interests of the child.
The models of guardian ad litem representation that this article will analyze are the private attorney model, the staff attorney model, and the Court Appointed Special Advocate (“CASA”) model. Of these several different models, the one that stands out above the rest is that of the Court Appointed Special Advocate. The CASA model, in which trained lay volunteers provide advocacy for abused and neglected children, has been consistently evaluated as the most effective at advocating the best interests of the child and the most successful at procuring a safe and permanent home for the child in the shortest time possible. Whether acting in conjunction with a program attorney, in addition to an independent guardian ad litem attorney, or as the child's sole guardian ad litem, the CASA volunteer has raised the bar for acceptable standards in child representation and provided a solution to the nationwide problem of the often poor performance of court appointed legal counsel for children.
Part I of this article traces the history of the child advocacy movement, from the origins of children's rights through the most recent developments. Part II then discusses the various roles of the guardian ad litem in abuse and neglect cases and their use of the “best interests” standard in court recommendations. Part III reviews the effectiveness of the various models of guardian ad litem representation, discusses the problematic absence of quality legal representation in some of these models, and emphasizes the need for comprehensive adoption of the CASA model. Part IV then provides essential information to assist guardians ad litem without the benefit of a CASA in understanding and communicating with children and families and considering problems of confidentiality. Finally, Part V offers strategies to guardians ad litem to help mitigate the detrimental effects of the adversary system on children.
The representation of children in child protective proceedings, defined generally, as cases in which a parent or other person responsible for the care and custody of a child is charged with committing acts of child neglect or abuse, originated in the late 20th century. A few pioneering states enacted legislation in the 1960's, and the movement to provide legal counsel gained momentum through the enactment of the 1974 Federal Child Abuse and Treatment Act, and the subsequent implementation of the Act's mandate that children be afforded “representation” through the appointment of an attorney or lay “guardian ad litem.” Today, the substantial majority of American children are represented by legal counsel, and the clear trend is toward universal attorney representation.
The development of children's representation, however, has been tempered by an unresolved controversy concerning the role and responsibilities of the child's counsel. Usually couched in terms of whether the lawyer should advocate the “child's wishes,” or alternatively, the child's “best interests,” both approaches unfortunately oversimplify the complex nature of representing children, who range in age from the newborn to the near adult. The competing models, frequently prescribed by state statute or appellate decisions and analyzed through multiple articles and commentaries, fail to meet most children's needs, and fail to appropriately guide the attorney through the complex adversarial course of child protective litigation.
The thesis of this Article is that the system should evolve beyond a “best interests” or a “child's wishes” paradigm and assume a traditional attorney-client model. That is not a new concept-the American Bar Association Standards on Representing Children in Child Protective Proceedings Act, several articles, and at least a few states have tentatively moved in that direction. To continue the progression, I believe we need a greater understanding of the child's right to representation, including the child's constitutional right to counsel, the child's role and interest in the proceedings (counsel is cast adrift in the absence of his client's defined rights), and the child's right to be involved as a participant in the litigation. I also believe we should cut a new path through the “thicket” of “child's wishes” versus “best interests” . The new path should reinforce the child's legal role, including his status as a full party to the proceedings; recognize the child's interests in protection, family integrity, and autonomy; and his right to legal representation akin to that of any other party to the litigation.
Part I outlines the historical context and address the child's right to legal representation. Part II discusses the child's legal status by defining the specific legal interests, her procedural rights as a party to the litigation, the right to choose counsel, and the child's right to be involved as a participant. The penultimate Part analyzes the role of the child's counsel, including an outline of the relevant statutes, the diametrically opposed positions of state legislatures and the organized bar, and the hopelessly conflicting contemporary case law. The final Part addresses the fundamental deficiencies of the “best interests” and “child's wishes” dichotomy, and suggests a hopefully better approach, one designed to respect and implement children's legal interests.
This symposium on the centenary of juvenile courts in Minnesota lends itself to a discussion on ethics and the standards of practice for the representation of children. While the landmark case, In re Gault gave children in juvenile court the constitutional right to an attorney for juvenile court proceedings where the loss of liberty for the child was a possibility, not every child has been afforded the right to a lawyer. Interestingly, Minnesota has accorded children the right to a lawyer by statute since 1959--but it is not clear how that right was implemented. One hopes it was not just another aspirational goal for protecting children with no possibility of fulfillment because the funding was not appropriated.
These Recommendations of the UNLV Conference on Representing Children in Families (“UNLV Recommendations”) embrace and address the complexities and contradictions of seeking justice for children in legal and policy settings. Affirming and building upon the Recommendations of the Fordham Children's Conference (“Fordham Recommendations”), the UNLV Recommendations aim to chart a course for children's attorneys to discern and amplify children's voices in all of their complexity and to confront the contradictions of client-directed, multi-disciplinary, holistic, and contextual representation: to cabin themselves to their role as legal experts and to consult children, their families and others with relevant knowledge and expertise regarding the social and material interests of their child clients; and, with the client's permission, not to confine legal assessment or services to the particular legal issue for which the attorney was retained or appointed. The working group reports that formed the basis for many of the recommendations provide additional context and discussion for these principles.
In 1998, the children's guardian was introduced into German law as a new legal institution to represent interests of children and young people in certain family and guardianship court proceedings. Until now, there has not been realized any comprehensive investigation about the perception of children and young people themselves about the new figure. This study focuses on the understanding of 52 children and young people concerning the guardian's role and their satisfaction with the representation. To a large extent, most children formulated appropriate and differentiated conceptions of the role and duty of the children's guardian even if there were a few uncertainties. Furthermore, most children reported on many positive and satisfying aspects, although individual aspects were designated as problematic.
Objective: The aim of this study was to examine the trajectory of cases through four systems: child protection, law enforcement, the dependency courts, and the criminal courts. Method: This study focused on a county selected from a 41-county telephone survey conducted for the National Incidence Study of Child Abuse and Neglect (NIS-3). For this analysis prospective samples were drawn from law enforcement (n = 225) and the county child protection (CPS) agency (n = 225) and followed through in-depth case tracking across all agencies and through both the dependency and criminal court systems. Results: The percentage of CPS cases opened in dependency court was similar to prior studies (29%), but the acceptance and prosecution rates were much higher--92% of the cases referred from CPS, including many cases of physical abuse. Compared to referrals from CPS to law enforcement (93%), few cases were referred from law enforcement to CPS (17%). Anecdotally, case referral patterns appeared to be influenced by communication patterns and mutual positive regard, regardless of the collaborative protocols in place. One of the most instructive findings was the degree of difficulty in tracking cases across organizations and the types of obstacles that impeded success. Disorganization was not an issue, rather internal structures set up to facilitate intra-organizational processing were the same structures that actually impeded cross-organizational case finding. Conclusions: It is not sufficient to rely on the existence of multi-disciplinary teams or Child Advocacy Centers to ensure collaboration. More attention to daily tasks and activities as well as the nature and quality of communication is warranted. On the technical side, use of common case identifiers on cases that are cross-referred is strongly recommended. Future studies should broaden the scope of inquiry to include the consequences of all case trajectories, rather than solely focusing on the justice system.
2006 Patricia Kane, The Developing Role of the Guardian Ad Litem under the Children (NI) Order 1995, in 12 Child Care in Practice, Apr. 2006, at 157.
The Northern Ireland Guardian Ad Litem Agency was established consequent upon the implementation of The Children (NI) Order 1995. The role of the guardian has developed and become embedded in a changing socio-legal context. This paper will review the key influences that have impacted on predominant social work thinking. Anticipated legislative change and the challenges of managing the service in a climate of productivity indices and efficiency savings will be explored.
Children's representatives appear in a variety of settings, including child custody disputes, abuse and neglect proceedings, contested adoptions, civil commitment, procedures for obtaining judicial consent for abortion, and, of course, juvenile delinquency cases. This article will describe the most prominent approaches to child representation within the United States, with a focus on the legal representation of children in abuse and neglect proceedings and private custody disputes. To illustrate the range of approaches currently in place across the United States, Part I highlights differences in the laws of several states regarding children's attorneys and guardians ad litem. In some states, legislatures have codified guidelines for children's representatives in an effort to bring clarity and predictability to this area of the law. In other states, courts have announced principles governing lawyers and guardians ad litem on an ad hoc basis. The various approaches, while often contrasting markedly one from another, generally reflect policy choices about what best protects children. Part II analyzes a few of the key ethical issues that can arise in the course of a lawyer's representation of a child client. Ethical tensions have driven many of the proposals regarding children's attorneys, and courts have resolved these tensions differently. Part III summarizes the competing proposals governing children's representatives that have emerged within the United States, with particular attention to the American Academy of Matrimonial Lawyers' (“AAML”) guidelines for lawyers representing children in custody disputes and the contrasting American Bar Association (“ABA”) proposed standards of practice for children's attorneys.
Throughout this analysis, I offer reflections on the relative merits of the competing models of children's representatives, emphasizing the points of agreement as well as the points of contention. The passion with which children's advocates defend their positions has convinced me that universal consensus is unlikely to be achieved soon. On the other hand, the very existence of the debate can be seen as a positive development. As we move into the twenty-first century, I find hope and promise in the fact that child advocates, professional associations, legislatures, and courts are engaged in a conversation about how best to speak for our most vulnerable population.
This paper provides a comparison of a number of alternative models of international practice in relation to the appointment and organization of guardians ad litem and other children's representatives in child care and family proceedings. The paper notes that, in their attempts to address the need for children to have representation in matters affecting their welfare, English-speaking countries have tended to conflate the two salient Articles of the United Nations Convention on the Rights of the Child, that is, Article 3, which deals with the child's best interests, and Article 12, which deals with their right to express their wishes and feelings. Where systems other than `stand alone' legal representation have been put in place, the child's representative is charged with both assessing their best interests and, often as a secondary duty, communicating their views. The paper concludes that for some groups of children in public or private law proceedings, an advocate (rather than a best interest oriented guardian, and where necessary in addition to a legal representative) may enable better representation of the child in the courts and greater participation by children in legal proceedings, an increased role for children as citizens and a fuller implementation of their rights.
Child protective service (CPS) and child abuse law enforcement (LE) investigators have been required by the majority of states to work together when investigating criminal cases of child abuse. Child Advocacy Centers (CACs) and other. multidisciplinary models of collaboration have developed across the United States to meet these requirements. This study surveyed 290 CPS and LE investigators who use a CAC in their investigations of criminal cases of child abuse. Reasons given for using, centers, include legal or administrative mandate and protocol, child appropriate environment, support, referrals, capacity for medical exams, expertise of center interviewers and access to video and audio technology. Respondents also identified ways that centers could be more helpful.
Court Appointed Special Advocates (CASA) and guardian ad litem (GAL) programs provide critical support for abused and neglected children who are under the protection of the juvenile or family court. This article describes how judges can create, support, and sustain CASA programs in their own jurisdictions so that these children will be better served. It presents suggestions about how judges can make their CASA programs as effective as possible. Such programs will bring great benefits to the judge, but most importantly to the children for whom the judge has legal responsibility.
We have celebrated the 100th anniversary of California's juvenile court, and yet we continue to struggle with our system of intervention on behalf of abused and neglected children who have been removed from their homes. For the past 27 years, volunteers working in Court Appointed Special Advocate (CASA) programs have played an important role in helping abused and neglected children get through the dependency process. This article summarizes the findings of 20 studies assessing the impact of CASA programs on (1) the activities of child representatives, (2) the dependency process, and (3) case outcomes and reentry into foster care. It combines and interprets statistical information in an effort to make the information easily accessible to judges, lawyers, social workers, policy-makers, child welfare professionals, social scientists, and the general public.
In Georgia there are nearly 14,000 children currently involved with the child welfare system,1 and each of these children has been involved in at least one hearing in Georgia's juvenile courts. For the children and families involved, these hearing are of momentous importance. Whether it is a probable cause hearing, a termination of parental rights hearing or any of the possible steps in between, these hearings change children's lives forever. Despite the critical nature of these hearings, not all of Georgia's children receive legal representation in deprivation cases, leaving children's interests vulnerable to an overburdened and frequently inattentive system.
The President of the Family Division issued a Direction on the appointment of guardians ad litem for children in private law cases, 'Representation of Children in Family Proceedings Pursuant to r 9.5 of the Family Proceedings Rules 1991 [2004] Fam Law 459.This article examines party status issues, previous guidance, the 2004 President's Direction, and 10 examples that try to distinguish the cases in which a child may be made a party. It then discusses exception cases. 'The President's Direction and the Practice Note helpfully separate the issues of making the child a party and the internal allocation of work within CAFCASS. However, neither document assists in identifying the purpose of making the child a party of the choice of guardian made. As indicated above, the primary reason for using the vehicle of r 9.5 seems to be to enable the CAFCASS officer to obtain legal advice and assistance. The need to consult children in making decisions about their welfare is commonly accepted and understood. The way in which this can best be achieved is probably for there to be a range of interventions. In most cases, a CAFCASS officer will remain the best way to achieve this. In some cases, the child will need to be seen by the judge and, conceivably, will need to attend some court hearings, for example, concerning secure accommodation. In some cases (most public law cases for example) the CAFCASS officer will be assisted by legal advice and representation. The current approach of the court is based largely on historical construction (the need to identify 'the parties' to a case and the need for a 'minor' to be represented by an adult guardian ad litem in the High Court and county courts). It would be more efficient and more child-centered to start from a different perspective. The parties and the court should consider how best to ascertain the child's wishes and feelings and how best to consult the child throughout the court process. This would accord with the duty in Art 12 of the UN Convention. Secondly, the needs of the CAFCASS officer for advice and assistance also requires separate consideration.' The court should have the power to appoint a child's guardian, a term that most accurately describes the responsibilities of the CAFCASS officer appointed by the court, and the officer should have the 'power to seek legal representation according to the needs of the case.'
1997 Lois A. Weinberg, Carl Weinberg, and Carol M. Shea, Advocacy's Role in Identifying Dysfunctions in Agencies Serving Abused and Neglected Children, in 2 Child Maltreatment, Aug. 1997, at 212.
Weinberg, et al. performed a qualitative study which addressed how the various agencies that are responsible for providing services to abused or neglected children or children with disabilities fulfill their responsibilities to a population of foster children with disabilities.