Beyond Paternalism: The Role of Counsel for Children in Abuse and Neglect Proceedings
UNH Law Review, Vol. 11, p. 97 (2013)
32 Pages Posted: 20 Apr 2013 Last revised: 21 Apr 2013
Date Written: April 19, 2013
When children are abused or neglected, the State often intervenes and assumes care and control of the child. As a result, legal proceedings begin in a juvenile court. The decisions made during such proceedings directly impact the substantive and procedural due process rights of children.
Juvenile courts routinely appoint lawyers to represent children in abuse and neglect cases. However, the appointed lawyers receive conflicting directives about their roles. Lawyers for children are often instructed to take on a guardian ad litem role through which they make a recommendation to the court about the “best interests” of the child, rather than to act in the traditional attorney role and advocate for the child client’s legal interests. This guardian ad litem model of lawyering is ineffective in the context of a rights-based juvenile court system. The better model is that of the traditional attorney who gives voice to the client’s wishes and advocates for the protection of the child’s legal rights.
The traditional attorney model necessarily encompasses the best interests of the client while also giving voice to the child’s wishes. The model of representation for children in abuse and neglect proceedings must transcend the paternalistic notion that lawyers know what is best for children. Only true legal advocacy will effectively protect the legal rights of child clients. In juvenile proceedings, a child’s right to counsel should mean a right to counsel who functions as an advocate not as a guardian ad litem.
Keywords: Juvenile Law, Dependency, Role of Counsel, Paternalism
JEL Classification: K00, K30, K41
Suggested Citation: Suggested Citation