Legal Representation of Children in Canada

7. Child Legal Representation: A Sociological Perspective

Apart from the question that this paper has largely focused on - the issue of when legal representation is available to children - there are many other questions that can be asked. How effective is it? How do lawyers and children feel about it? What can be done to improve it?

Some authors, like Birnbaum and Bala, have studied the child’s perspective on independent legal representation. In a 2007 study, the authors found that while children report being glad to speak to someone who was independent, they also felt as though their lawyer did not really explain the process to them or pay enough attention to their wishes.Footnote 192

Birnbaum has also studied the views of lawyers who represent children in custody and access disputes, concluding that“only the most experienced lawyers and clinicians should be retained to represent children given the complex family dynamics involved during pre-and post-separation and/or divorce.”Footnote 193 Birnbaum’s study also showed that both lawyers and clinicians believed that working collaboratively with one another is an effective model that needs to be more fully explored in the future.

Birnbaum has written that “lawyers representing these children must not only have an understanding about the rules and the relevant law (i.e.the statutory and constitutional underpinnings) but also have a working knowledge of the literature on child development and family dynamics, interviewing children, and the importance of collaboration and communication when responding to children involved in custody and access disputes where family violence, in particular, is alleged.”Footnote 194 Birnbaum points out that “traditional law schools spend very little time on family law training and focus almost exclusively on financial support obligations”.Footnote 195 Because of this, Birnbaum argues that “there needs to be a fundamental shift in the way children are being legally represented in Ontario” and that “children should have both a mental health professional and a lawyer advocating for their interest before the court” - rather than the current model which provides legal representation with a clinical assist.Footnote 196

Burns has written about the ethical dilemmas faced by lawyers who represent children, including ethical concerns surrounding capacity issues (i.e. how to determine whether the child client has the capacity to give instructions) and confidentiality issues.Footnote 197 She notes that representing children “places a heavy burden on counsel because the legislation does not have regard to the developmental realities of providing advice to children.”Footnote 198

Studies have been conducted regarding the effectiveness of independent legal representation for children. In a 2005 study that examined 500 Ontario cases, Birnbaum concluded that “child legal representation and/or a clinical investigation resolves cases and assists children in having a voice before the court.”Footnote 199 A 2009 multi-disciplinary study found that almost all participants (91%) thought that legal representation for the child is a good mechanism for hearing the child’s views: lawyers were most positive about this mechanism (97.2%) while other professionals were least positive (75%). Survey respondents were asked to provide reasons for their view and the most common response was that legal representation is a good mechanism for hearing the voice of the child if the role of the lawyer is clear and the lawyer has training in the proper representation of children.Footnote 200