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Right To Be Represented but Not Heard - Refections on Legal Representation for Children

NCJ Number
New York University Law Review Volume: 59 Issue: 1 Dated: (April 1984) Pages: 76-155
M Guggenheim
Date Published
80 pages
A critical appraisal of the provision of legal counsel for very young children in judicial proceedings is presented in a four-part article.
Part 1 discusses the role played by counsel when the client is an adult and notes that in such cases, counsel is bound by the client's instructions and acts to achieve the client's legal objectives. Part 2 extends the discussion to cases in which the child is mature enough to guide his or her attorney's actions. The U.S. Supreme Court decision in the 1967 Gault case is discussed. It is suggested that children over 7 years old should have the power to direct counsel in delinquency and protective proceedings. Part 3 examines the role of counsel for children who are too young to direct the attorney by exploring traditional legal sources, including the Moral Code of Professional Responsibility, case law, and statutes. The two most frequently adopted roles of attorneys representing young children are delineated: (1) the champion who advocates the position he or she believes to be in the child's best interest and (2) the neutral investigator, who gathers and presents to the court as much information as possible. Ethical dilemmas and limitations posed by each of these roles are considered. Part 4 examines the role of counsel for children under age 7 in a variety of proceedings. These include divorce-custody cases, child protective proceedings, constitutional class actions, and cases in which parents seek judicial approval for medical treatment of a child. An attempt is made to provide concrete guidelines for lawyers representing young children in each of these types of cases. A total of 340 footnotes are provided. (Author abstract modified)