A Child Litigant's Right to Counsel
41 Pages Posted: 8 May 2019 Last revised: 15 Aug 2019
Date Written: April 24, 2019
As the Supreme Court put it a half century ago, the right to counsel for juveniles reflects “society’s special concern for children” and “is of the essence of justice.” In a variety of legal proceedings, from delinquency matters to child welfare proceedings to judicial bypass hearings, the law requires the appointment of counsel to child litigants. While coherent in the whole, the law regarding counsel for child litigants is a patchwork of state and federal constitutional rulings by courts and statutory grants. Legal scholarship about a child litigant’s right to counsel is similarly fragmented. Predominantly, legal scholars have examined arguments for a child litigant’s right to counsel at government expense by focusing on a particular kind of proceeding.
This Article offers a unified theory for a child litigant’s right to counsel at government expense that spans judicial proceedings. In legal proceedings where significant legal rights or interests are at stake, fairness demands that child litigants have a right to counsel at government expense in those proceedings. In the main, the law coheres with the theory proposed here. However, one type of proceeding involving tens of thousands of juveniles annually with tremendous consequences stands as an unjustifiable outlier – immigration removal (deportation) proceedings.
Keywords: right to counsel, juvenile, child, immigration, delinquency, child welfare, abortion, due process
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