Representing children's views and best interests in court: an international comparison

Abstract

This paper provides a comparison of a number of alternative models of international practice in relation to the appointment and organization of guardians ad litem and other children's representatives in child care and family proceedings. The paper notes that, in their attempts to address the need for children to have representation in matters affecting their welfare, English-speaking countries have tended to conflate the two salient Articles of the United Nations Convention on the Rights of the Child, that is, Article 3, which deals with the child's best interests, and Article 12, which deals with their right to express their wishes and feelings. Where systems other than 'stand alone' legal representation have been put in place, the child's representative is charged with both assessing their best interests and, often as a secondary duty, communicating their views. The paper concludes that for some groups of children in public or private law proceedings, an advocate (rather than a best interest oriented guardian, and where necessary in addition to a legal representative) may enable better representation of the child in the courts and greater participation by children in legal proceedings, an increased role for children as citizens and a fuller implementation of their rights. Copyright © 2005 John Wiley & Sons, Ltd.KEY WORDS: guardian ad litem; children's representation; children's voice; children's rights; courts T his paper provides a review of international practice in relation to the appointment and organization of guardians ad litem and other children's representatives in child care and family proceedings. It is intended to provide a concise comparative framework of a number of alternative models. We have written the paper as a consequence of a recent review

Lay Forums in Child Welfare

“…In the juge des enfants approach, parties (families) tend not to have legal representation (Freymond, 2001), even where the parents are mandated to attend against their will (as when they are suspected of child abuse). French judges also advise on child welfare matters relatively early in proceedings compared to other legal systems (Bilson & White, 2005). Furthermore, children are entitled to request a hearing (Bilson & White, 2005).…”

“…French judges also advise on child welfare matters relatively early in proceedings compared to other legal systems (Bilson & White, 2005). Furthermore, children are entitled to request a hearing (Bilson & White, 2005).…”

“…In Scotland, for example, if there is agreement regarding the facts of the case, the matter can be heard by a panel of three lay volunteers instead of requiring a formal court hearing (Freymond, 2001). The Scottish also use social workers in place of lawyers to represent children's best interests (Bilson & White, 2005), in the belief that this will make the process less adversarial. In the United States "citizen volunteers" are used in many states to advise the courts regarding the child's best interests (Bilson & White, 2005).…”

“…The Scottish also use social workers in place of lawyers to represent children's best interests (Bilson & White, 2005), in the belief that this will make the process less adversarial. In the United States "citizen volunteers" are used in many states to advise the courts regarding the child's best interests (Bilson & White, 2005). This writer is concerned that these latter approaches, in attempting to ensure that the interests of all parties are represented appropriately at court, may result in both over-representation and over-professionalisation.…”

The Voice of the Child: Experiences of Children, in Middle Childhood, Regarding Children’s Court Procedures

“…This is evident in that, despite children's rights being a central focus in the current legislation and policies, judgments are often made during children's court proceedings as to whether or not children's wishes and views regarding their future are really in their own best interests or not (Bilson & White, 2005). Furthermore, Bilson and White (2005:236) found that in court settings, "the views of children are generally a secondary consideration to adult views of their best interests.…”