Controversy about the Role of Children's Lawyers: Advocate or Best Interests Guardian? Comparing Practices in Two Canadian Jurisdictions with Different Policies for Lawyers

• Author: Nicholas Bala,Lorne Bertrand,Rachel Birnbaum
• DOI: http://doi.org/10.1111/fcre.12060
• Date: 01 October 2013
• Published date: 01 October 2013

CONTROVERSY ABOUT THE ROLE OF CHILDREN’S LAWYERS:

ADVOCATE OR BEST INTERESTS GUARDIAN?

COMPARING PRACTICES IN TWO CANADIAN JURISDICTIONS

WITH DIFFERENT POLICIES FOR LAWYERS

Nicholas Bala, Rachel Birnbaum, and Lorne Bertrand

There is controversy about the role that lawyers for children should play in family proceedings, but little empirical research

about what they actually do. This article reports on a study (n=166) of the experiences and perspectives of lawyers in two

Canadian provinces with differentpolicies for the role of children’s counsel. Off‌icial policies seem to have only a limited impact

on the practices of lawyers for children, whether the policies direct lawyers to adopt a best interests guardian or a traditional

instructional advocate role. Lawyers generallyseem more comfor tableadopting an instr uctional advocacyrole, especially with

older children. Lawyers who represent children comment on the deep satisfaction that they feel from this work.This ar ticle

compares the practice of lawyers in the two jurisdictions on a number of issues related to child clients and proposes policy

changes to provide better guidance and education for children’s lawyers.

Keypoints for the Family Court Community

This survey of lawyers in these two jurisdiction reveals:

• lawyers spend longer meeting with older children;

• that off‌icial policies have some impact on the practice of lawyers, but a signif‌icant number of lawyers decide for

themselves what role they will play;

• lawyers generally seem more comfortable adopting an instructional advocacy role, especially with older children;

• lawyers in the jurisdiction where they are expected to adopt a best interests role are more likelyto tell parents and the

court that they were adopting this role when they were in fact advocating what the child wanted;

• In both jurisdictions about one f‌ifth of the lawyers reported that they had disclosed a child’s “secret” to prevent harm

to the child.

Keywords: Children’s Lawyer;Legal Ethics;and Role of Lawyer forChild.

INTRODUCTION: THE CONTEXT FORTHE CONTROVERSY

There is growing recognition in many countries of the importance of children’s participation in

the family justice process. Children are not merely the subjects of family litigation, but rather, to the

extent that is consistent with their age, capacity and desire to participate, they should be informed about

the family restructuring process and given an opportunity to express their views about decisions

affecting their lives and well-being.1Animportant way of facilitating children’s participation in family

proceedings is the increasingly common practice of having lawyers appointed to represent children.

There is a general acceptance that these lawyers can provide the child with information and support

during the court process, but there is profound controversy overthe role that lawyers for children should

play in family proceedings. Should theyplay the traditional role of lawyers, acting on the “instructions”

of their child clients, or are they to be “friends of the court,” ensuring that all relevant evidence is

availablebut not advocating for any position, or is the role to advocate for the best interests of the child

based on the lawyer’s assessment of the proper position to advocate? Much has been written about the

appropriate role of children’s lawyers based on the opinions of lawyers, judges and scholars in

Australia,2Canada,3New Zealand4the United Kingdom5and the United States,6and there is a small

empirical literature on the experiences of children with their lawyers.7There is, however, almost no

empirical research about what the lawyers who do this work understand about their role or about their

Correspondence: bala@queensu.ca; rbirnbau@uwo.ca; lbertran@ucalgary.ca

FAMILY COURT REVIEW, Vol. 51 No. 4, October 2013 681–697

© 2013 Association of Familyand Conciliation Cour ts

actual practices in representing children in the family courts.8This paper adds to the small body of

research about what children’s lawyers actually do, comparing the experiences and perspectives of

lawyers in Alberta and Ontario, two Canadian provinces with relatively extensive programs for child

representation in family proceedings, but very different policies for the role of children’s counsel. To

our knowledge, this is the f‌irst empirical study to compare the attitudes and approaches of lawyers for

children in two jurisdictions with differing approaches to child representation.

The approach in Alberta presumptively requires lawyers for children who express their views to be

“instructional advocates,” taking direction from their child clients in a manner similar to the way that

they would from adult clients. The policyof Ontario’s Children’s Lawyer directs lawyers for children

to ensure that the court is aware of the child’s wishes, but allows them to advocate for a different

position, one that in the view of the lawyer promotes the child’s interests.

The f‌irst part of this paper discusses the three main approaches to child representation: the amicus

curiae [friend of the court], the best interests guardian and the instructional advocate. The second part

provides a context for our empirical research, describing the programs for representation of children

involved in family cases (child welfare cases and domestic disputes) inAlber ta and Ontario, specif‌i-

cally contrasting the differing ethical rules governing counsel for children in these two jurisdictions.

The third part presents results of our empirical research, data from three web-based surveys of lawyers

for children in these two provinces. The f‌inal part notes some of the limitations of our study and

explores the broader implications for practice, research and policy of this study.

Lawyers recognize that representation of children is not the same as representation of adults,

especially when children are very young, unwilling to express a preference, or feel intimidated or

pressured. Our study reveals, however, disagreements among lawyers about the role that they should

adopt when representing children who want an outcome that differs from their lawyer’s assessment of

what is in their interests. A signif‌icant f‌inding of our research is that in both Ontario and Alberta a

substantial number of lawyers have their own approaches to their roles; off‌icial policies seem to have

only a limited impact on the practices of lawyers for children, whether the policies direct lawyers to

adopt a best interests guardian or a traditional instructional advocate role. However, lawyers generally

seem more comfortable adopting an instructional advocacy role, especially with older children. This

advocate role is more consistent with the education of lawyers and their role with other clients, and

may be more consistent with the expectations that children who haveclear wishes have about lawyers.

In this study, lawyers who represent children also comment on the deep satisfaction that they feel from

this work.

I. ROLES FOR CHILD LAWYERS

It is generally accepted that there are three different roles that lawyers for children can adopt:9

(1) the friend of the court; (2) a best interests guardian; and (3) instructional advocate (or child’s

attorney). While some jurisdictions have policies that adopt hybridapproaches, and individual lawyers

may adopt different roles depending on the circumstances of a case, it is nevertheless useful to

understand these fundamentally different approaches, and to analyze the work of lawyers through the

lenses of these approaches.

(1) Friend of the Court (or Amicus Curiae)

The lawyer who adopts a “friend of the court” role (often referred to by the Latin translation,

amicus curiae) has the responsibility to ensure all relevant evidence and argument is before the court

so that the court can make an appropriate decision.10 While most of the evidence at trial will normally

be introduced by the parties (the parents or a child protection agency), if the parties do not introduce

some relevant evidence about the child, the amicus lawyer will complete the evidentiary picture for

the court. The amicus lawyer may also have a role in challenging the evidence of the parties by

cross-examination or calling reply evidence.

682 FAMILY COURT REVIEW