Representing Children in Families

Abstract

Family systems theory is a holistic approach to human development. The au-courant terminology for essentially this same set of ideas is "ecological theory," to make it apparent that the theory concerns the broader environment in which an individual, or in our case, a child, exists, as well as the child's family. Nevertheless, I believe it is significant to continue to refer to this approach as family systems theory, in part because I still believe that the family, broadly defined, holds a preeminently important place in a child's life, and therefore cannot be ignored if we are truly to try to understand a particular child. Moreover, we need to be reminded to keep families in the forefront of our considerations about children, inasmuch as many professionals with good intentions would prefer to set the family aside and focus on the community or other broader systems, because of their own ambivalence about the families connected to these children.

By using the term family system, it is also important to emphasize that I am not speaking about a narrow or traditional definition of family. The family system is defined by bonds of intimacy as well as by blood ties. This means that a family system surrounding a child could include neighbors, close family friends, "fictive kin," as well as foster parents. It also means that a family system might also include individuals who have a special interest in establishing bonds of intimacy with the child as well as those with whom the child has existing bonds. For instance, a biological mother of a newborn infant may be part of that child's family system to the extent that she seeks to establish a bond with that infant. This latter category is not open-ended, but instead is limited to persons who have a reasonable basis to form an intimate bond with the child, such as members of the child's biological family, or perhaps prospective foster or adoptive parents. In general, it should be limited to others whose bonds with the child have been created with parental consent.

This theory represents the core of my proposal. At the same time, I also want to promote a broader set of constructs that are part of what is now known as generalist social work practice. We and our legal colleagues (i.e., other private attorneys, agency lawyers, public defenders, prosecutors, and judges) need to become more familiar with this set of constructs in order to represent children properly, regardless of the subject area in which we practice, be that delinquency, dependency, special education, immigration, etc. These constructs relate to both the "micro"-level, in terms of the "attorney-client" relationship, as well as the "macro"-level, in terms of broader institutional reforms. In addition to family systems theory, this discussion will highlight the role of culture as a necessary counterpart.

The vehicles I will use for discussing these constructs are two interdisciplinary approaches that are emerging as critical legal movements in their own right with an international scope. These two critical approaches are therapeutic jurisprudence ("TJ") and preventive law ("PL"). TJ offers an overarching framework for this paper's critique as well as its proposals, while preventive law provides a complementary approach to that of therapeutic jurisprudence. After laying out these theoretical underpinnings, I will discuss micro- and macro-level critiques of the current child representation model. I will then describe two interlocking recommendations that could potentially shift children's representation towards a more family-centered direction:

(1) incorporate alternative approaches to procedural justice; and

(2) focus on best practices.

Finally, I will examine a couple of different scenarios that challenge the notion that an attorney can effectively represent children using a family systems perspective: the context of the child who wants to "divorce" her parents, and the delinquency context. These examples will highlight the importance of focusing to a much greater extent on alternative approaches to procedural justice and best practices as the direction our efforts must take in order to embrace fully what it means to represent children in families.