No Right to Counsel, No Access Without: The Poor Child’s Unconstitutional Catch-22

Posted: 18 Dec 2018

See all articles by Lisa V. Martin

Lisa V. Martin

University of South Carolina School of Law

Date Written: November 30, 2018

Abstract

In the midst of the push for universal access to counsel in civil cases and the increasing proportion of litigants who represent themselves, a critical barrier to access to justice for children has been overlooked. Federal courts mandate that claims brought on behalf of child litigants be advanced by counsel, but do not provide legal representation for children who cannot afford it. Instead, federal courts routinely dismiss children’s claims in the name of protecting children’s interests, leaving them without access to legal relief. By enforcing a “counsel mandate,” courts effectively exclude low-income children and their parents from legal relief, contravening children’s fundamental constitutional rights to court access, parents’ fundamental constitutional rights and responsibilities toward their children, and democratic norms. To cure this constitutionally questionable practice and protect the rights and interests of child litigants, courts should permit children’s claims to proceed and liberally exercise their discretion to appoint counsel to represent them.

Keywords: access to justice, child litigants, capacity, counsel, pro se

Suggested Citation

Martin, Lisa V., No Right to Counsel, No Access Without: The Poor Child’s Unconstitutional Catch-22 (November 30, 2018). Florida Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3293795

Lisa V. Martin (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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