No Right to Counsel, No Access Without: The Poor Child’s Unconstitutional Catch-22
71 Fla. L. Rev. 831 (2019)
58 Pages Posted: 18 Dec 2018 Last revised: 21 Aug 2019
Date Written: November 30, 2018
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 have created a catch-22 for child litigants. Children cannot bring claims themselves, so parents must bring the claims on their behalf. Federal courts refuse to allow parents to pursue these claims pro se, stating that parents cannot provide adequate legal representation. Yet, there is no right to counsel in civil cases, and these same courts typically conclude the children’s cases do not warrant appointment. As a result, federal courts routinely dismiss children’s claims for lack of counsel in the name of protecting children’s interests, leaving some of the most vulnerable patrons of the justice system without legal remedies. Thus, 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: Suggested Citation