The Case Against Children’s Counsel – Part 3
By Brian Ludmer
PART 1 OF THIS SERIES on issues concerning children’s counsel indicate that generally appointing counsel for children is contra-indicated in cases where there are parental alienation concerns. Relatedly, in part 2 of this series, I provided analysis and key quotes from prior judicial decisions about how to contest the court appointment of counsel for children in such cases.
This article—Part 3—will explore some of the unique issues and concerns arising from a purported unilateral
(i.e., not with the prior approval of the court) retention of counsel either by the alienating parent or by a teenagechild with the consent, support, acquiescence, or tacit approval of the alienated parent. The law in most jurisdictions is clear—counsel for children only get appointed by the court and cannot be retained otherwise, even by a parent who has sole custodial or decision-making authority. The appointment of private counsel without court approval is contra-indicated, not only under most rules of procedure, but also because typically children do not have the financial, independent cognitive capacity, and independent perspective necessary to instruct counsel free from the influence of the alienating parent. Further, unilaterally appointing counsel for a child strips the court of the ability to consider other less adversarial ways of having children’s voices heard by the court and children to feel that their voices have been appropriately weighed and taken into account. In the earlier articles in this series I mentioned that therapists, parental coordinators, and custody evaluators are to be preferred over the appointment of an advocate who is to assert the directions of his or her own “clients” against the will of the child’s parents. Further, the legal advice to children is subject to the same issues of privilege as legal advice the parents receive and that contrasts with the other modalities from which children’s voices are heard and introduced to court.
Unilateral appointments also deprive the court of making the normal inquiries into whether the appointment is absolutely neutral and unbiased in appearance, procedure and effect. This requires the court to:
1. determine whether the child has the capacity in the circumstances to instruct counsel
independent of the wishes of his or her parents;
2. determine whether that appointment is necessary and in the best interests of the child;
3. and make the selection of the particular lawyer.
Issues of capacity, manipulation, and undue influence need to be explored in advance of the appointment. Where one parent has facilitated (financially and/or logistically) counsel for a child who would then purport to make an appearance and/or to serve materials on behalf of the child, the matter can be contested as an abuse of process and/or involving at a minimum the appearance of lack of independence of such counsel. The jurisprudence makes it very clear that counsel for a child must not only act independently but be seen to act independently. Where their informational base is provided only by the child (who may at the time be living with only one parent) or by the parent who facilitated the retainer, any advice or even worse affidavit materials prepared by such counsel by or for the child and/or discussed with the child should inevitably taint such counsel’s involvement and lead to their discharge.
Contracts with a minor are subject to rescission if not for a necessary item (food, shelter, clothing) in many jurisdictions. There is no support for the proposition that a lawyer is entitled to act for a minor child who contacts them absent a court order or parental consent from both parents. It should therefore be a “red flag” from the beginning where the one parent or a child has not indicated that both parents have consented. Further, as soon
as the other parent learns of the engagement and objects, the lawyer should stand down until further instructed
by the court. Meetings with children by a lawyer not appointed by the court should not take place until there
is court approval. A lawyer contacted in this regard may attend court to seek such appointment, but should not
have provided any advice, received any documentation only from one side or only from the child, or engage with the child in any way prior to such attendance and authorization. Relatedly, it has been held that interviewing a child prior to being appointed shows a lack of judgement even if the lawyer intended to act in good faith in his or her handling of the matter.
Further, in jurisdictions such as Ontario, Canada, where there is a government-funded program to provide counsel for children, representation from that independent government agency should always be preferred over a private appointment and it is almost always the practice of these government agencies to await appointment by the court before meeting the children.
Nor should a court ratify “after-the-fact” such unilateral appointments, as it would tend to bring the administration of justice into disrepute and cannot cure any prior tainting of the lawyer’s representation. Private counsel appointed unilaterally in such circumstances tend to exacerbate conflict, promote further litigation, and diminish any prospect of an amicable resolution. Children’s wishes need to be presented to court in a manner that is strictly free from the appearance of alignment and in a manner that affords the child a voice but does not necessarily embroil the child further or exacerbate what was already a high conflict matter. It is generally considered not in the best interests of the child to have the neutrality and independence of that child’s in-court representative in question by means of the manner of their original retainer. The appointment must be absolutely neutral and unbiased in appearance, procedure, and effect.
I have had an unfortunate amount of experience fighting off such appointments on the basis indicated above.
In some cases, full motion materials and affidavits have been prepared without the unilaterally retained lawyer
even reading the background materials and informing themselves independently of the issues in the case. Nor should unilaterally appointed counsel ever engage with third parties such as schools or purport to represent that the child has emancipated themselves (such as to apply for public funding) prior to a court declaration of emancipation, as this usurps the court’s role in making legal determinations and undermines the parental
authority.
While there is a current movement of trying to ensure that the “voice of the child” is heard in custody litigation,
well meaning but misinformed counsel can actually do a lot of damage to parent–child relationships by not following procedures meant to protect children’s relationships who are caught in a loyalty bind. The result of unilateral appointments is often an over-empowerment of the child and a further polarization of the child’s views and misapprehension of the child that “their counsel” will fight for them “against” one parent or the other.