The Lawyers Weekly - November 11, 2011

There is growing recognition of the value of having lawyers for children in family court proceedings, especially in child protection cases where kids’ ties to parents may be permanently severed. There is, however, controversy over the role of these lawyers, reflected in the differing approaches in Alberta and Ontario, the two provinces with the most extensive programs for child representation.

In Ontario, the 1996 policy of the Office of the Children’s Lawyer directs its lawyers to ensure that the court is aware of the child’s “views and preferences,” but also requires counsel to advocate for an outcome that is con-

RACHEL
BIRNBAUM
&NICHOLAS
BALA

It is the role of counsel to not only advocate for the child’s wishes but also, at a minimum, to present evidence regarding the child physical, intellectual and psychological maturity, the child’s understanding of the facts and issues before the court, the voluntariness of the child’s stated desires and the strength of the child’s wishes.

“

Judge P. E. Kvill

sistent with the child’s “interests,” even if contrary to the child’s expressed wishes.

Alberta’s more recently established Legal Representation for Children and Youth program has

New Edition!

Butterworths®

British Columbia Family Law Practice, 2012 Edition

The Honourable Madam Justice Carol Huddart & Trudi L. Brown, Q.C.

E-Book format included in your print purchase.

Offers invaluable insights, and more annotated legislation and unique features than any other “one-stop” resource

British Columbia Family Law Practice, 2012 Edition contains the federal
and provincial statutes which family law professionals consult daily, plus
full annotations, and a range of unique and invaluable features, in one
portable volume:
• Fully annotated Divorce Act featuring comprehensive case law
coverage from across Canada
• Explanations of key sections of the Divorce Act, Child Support
Guidelines, and Family Relations Act, featuring comprehensive case
law coverage from across Canada with cross-references to the new
B.C. Supreme Court Family Rules
• Full text of the Spousal Support Advisory Guidelines with
introduction by Trudi Brown, Q.C., and cases showing how they have
been applied
• Federal Child Support Guidelines Tables for British Columbia
with extensive case annotations, making the child support quantum
numbers readily accessible
• Expert-written practitioner’s notes alerting you to key cases and
statutory provisions, including case law which helps interpret the new
Family Rules
• Relevant cases from across Canada covering important precedents
for legal points not yet addressed by B.C. courts, and showing how the
provision has been applied in practice
• Scan-friendly limitations table to ensure filing deadlines are met
• E-Book format — easy download, off-line access and time-saving
navigation. Links to all government prescribed forms, fully hyperlinked
table of cases and index

taken a different approach. The 2010 program guidelines say lawyers should adopt an “ instructional advocacy role when representing children who are able to express an opinion.” The guidelines also allow that if conditions “preclude” taking an instructional advocacy role, counsel may use their own judgment about the child’s interests as the basis for their position.

While the Alberta policy is more directive than Ontario’s, our survey of Legal Representation for Children and Youth lawyers found significant variation in how they understand their role. We did the survey in conjunction with a recent Legal Representation for Children and Youth educational program, with 53 respondents, close to half of the lawyers doing this work in Alberta.

Most respondents (85 per cent) agree in principle with the policy that they are presumptively to advocate a position based on the views of their child clients. There is, however, substantial variation in how lawyers interpret the exceptions to this. Some lawyers think that most children over the age of three can instruct lawyers, while some believe that children need to be 12 or older to provide instructions, with others proposing a range of ages between as their starting point for presuming instructional capacity.

Over half the lawyers indicate
they would not adopt an instruc-
tional advocacy role if doing so
would place the child at a serious
risk of harm, such as having the
child placed in the care of an abu-
sive parent. While these lawyers
ensure that the court is aware of
the child’s views in these situa-
tions, they will not advocate such
a position. Other lawyers, how-
ever, feel ethically obliged to
advocate based on the views of
their child clients, regardless of
the risk that this may pose. As one
respondent observed: “There is
no consistency among counsel…
many lawyers do not [advocate
for children’s wishes]…because
they ‘think they know better.’”
All lawyers reported that they
meet older children more fre-
quently than younger ones, but
there is wide variation in how
often lawyers meet their child
clients. For example, for children
three years old and younger, six
per cent report that they gener-
ally do not meet these children,
44 per cent report one meeting,
36 per cent report two meetings
and 14 per cent report that they
generally see these children three
times.

There must be more dialogue and debate about the role of child’s counsel and ultimately clearer guidance for these lawyers.

“

Rachel Birnbaum and Nicholas Bala

Order Today! Take advantage of the 30-Day Risk-Free† Examination. Visit www.lexisnexis.ca/bookstore or call 1-800-668-6481

Please quote Reservation Code 3306 when ordering.

† Pre-payment required for first-time purchasers.

* Purchasers will be placed on standing order to receive future editions automatically on 30-day risk-free examination terms.

Price and other details are subject to change without notice. We pay shipping and handling if payment accompanies order.

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Butterworths is a registered trademark of Reed Elsevier (U.K.) Limited and its affiliated companies. Other products or services may be trademarks or registered trademarks of their respective companies. © 2011 LexisNexis Canada Inc. All rights reserved.

Lawyers were also asked about
the rewards and challenges of
representing children. While a
number note that the work can
be frustrating and the hourly rate
is low, many expressed great sat-
isfaction with being able to do it.
One commented: “Representing
children can be difficult and
upsetting, but it is a very reward-
ing part of my practice. I love
working with children.”
Judges are also expressing
their views about the role of Legal
Representation for Children and
Youth counsel. In Alberta (Child,
Youth and Family Enhancement
Act, Director) v. R.M., [2011] A.J.
No. 960 (Alta. Prov. Ct.) the
mother of three young boys had a
history of living in violent rela-
tionships and substance abuse,
resulting in the apprehension of
her children. The mother had lit-
tle contact with them for their
first months in care and then
ceased to visit. She told a social
worker that she was going to live
in another city and “disappeared”
without attending the trial.

Rachel Birnbaum is an associate professor of social work at the University of Western Ontario and Nicholas Bala is a professor of law at Queen’s University. They are continuing to carry out their research on the role of lawyers for children, supported by funding from the Social Sciences and Humanities Research Council.