Helping the children who would be kings

REPRESENTING CHILDREN IS A MULTI-SKILLED ROLE.

VICTORIA MacCALLUM HEARS HOW A SOLICITOR needs the skills of A counsellor and psychologist as well as those of a lawyer

Being seen and not heard may have been the favoured approach to childcare a hundred years ago, but in today's legal climate the rights of the child are becoming more and more prominent.Article 12 of the 1989 UN Convention on the Rights of the Child promises every child 'who is capable of forming his or her own views' the right 'to express those views freely...

and be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child'.More than a decade later, the Court of Appeal made a landmark decision in November last year that will make it easier for children to obtain separate legal representation in family proceedings.Giving the leading judgment, Dame Elizabeth Butler-Sloss, president of the Family Division, said that as a result of the incorporation of the European Convention on Human Rights into UK law - specifically article 6, the right to a fair trial - she 'fully expected' to see an increase in the number of family cases in which children had their own lawyers, and she would moreover welcome this in the 'right circumstances'.Thea Henley, director of legal services at the National Youth Advocacy Service (NYAS), is 'absolutely certain' that this decision will prove a landmark one, and she has good reason to be pleased at the outcome.

NYAS has its roots in Independent Representation for Children In Need, a charity established to campaign for better representation for children in private court proceedings, and the case in which Dame Elizabeth eventually ruled arose when she was refused appointment as a guardian ad litem for a four-year-old girl.

'NYAS's sole purpose is to provide children with a separate voice in court,' she explains, 'and the ruling in this case was very clearly in favour of that happening more and more.'The system as it stands means that in public law cases, children are represented by the 'tandem model' of a guardian ad litem - usually a social worker - who is appointed to represent the child's welfare, working in conjunction with a solicitor.

In private law cases, including sensitive areas such as adoption and custody battles, there is no automatic provision for the child to have legal representation.

Government plans are under way for the introduction this year of CAFCASS (Children and Family Court Advisory and Support Service), which will bring three currently disparate groups - the guardian ad litem service, the family court welfare service and the Official Solicitors office - under one umbrella to provide a unified service supporting families and children in court proceedings.

Rosemary Carter, chairwoman of the Solicitors Family Law Association and a partner in London firm Barnett Sampson, has been involved with developing CAFCASS, but expresses 'concern' regarding the standard of service it might provide.

'I fear that CAFCASS will be a dumbed down version of the current service, and this must not happen, as it's absolutely vital that a child's individual needs are looked after.'The importance of giving children a voice in court cannot be overestimated, says Ms Henley.

'When adults make decisions that are supposedly in the best interests of the child, they often forget to listen to the child, and so the child never gets to express his or her views.' Children suffer particularly in custody cases, she says, as when the parents' relationship has deteriorated to the extent that they end up in court, they have stopped listening to each other; as a result, they will also have stopped listening to their child.

'Children are untainted by life's experiences, and when you find one who has been damaged by their family breaking up you have a duty to help them.' Pat Monro, chairwoman of the Law Society's child law sub-committee, agrees that children should be given separate representation in family proceedings because 'children shouldn't be treated as pawns of the adults who are fighting over them'.

However, she does add that some lawyers and judges take the view that children should not be part of the messy legal wrangle.This is an attitude that Peggy Ray, partner in London firm Goodman Ray, can understand.

She specialises in dealing with child clients, and she frequently comes across children who - although fully capable of doing so - do not want to instruct a solicitor, and do not want to make highly responsible and far-reaching decisions.

'You must remember that these are often very troubled children, and you have to be careful not to push a child into a position they're not emotionally or psychologically comfortable with,' she says.

She recently dealt with a very bright 14-year-old girl, who was 'obviously capable of instructing a solicitor', but when meeting Ms Ray was curled up in the foetal position behind a sofa.

'It spoke volumes about her state of mind, and the fact that she didn't want to have this huge responsibility placed on her.

You have to be alive to these nuances.'In cases such as these, Ms Henley sees the lawyer's responsibility as immense.

'You have to help them to be a child.

You have to help them realise that they now have a choice not to make a decision, showing them that the responsibility lies with a lawyer who will speak for them and a court who will make the decision for them.'At the same time, the opposite can often be the case, and lawyers have to face the tricky task of telling a child that however much they may want something, the court will not allow it.

Ms Carter, who has more than 20 years' experience of representing children, describes her specialism as 'incredibly difficult and sensitive.

It's terribly difficult to have to tell a child who has very decided views that the court disagrees,' she says.

'It's a case of assessing their level of understanding, working out how much of the process they understand, and providing the appropriate amount of advice and care.' However, the flipside of working in such a sensitive but rewarding area is that there is a danger of becoming overly-involved with the children that the solicitor is assigned to represent.

'If a child wants something to happen, you have a responsibility as a professional to try your best to make that happen safely,' says Ms Henley.

'You have to be independent, neutral and non-judgemental.' Ms Ray concurs: 'You have to be extra careful to protect their interests without over-stepping the boundaries of "best interest".'Therefore, dealing with children is one of the few genuinely multi-skilled areas of the law: a children's solicitor has to be a counsellor and child psychologist as well as provider of legal advice.

'I wouldn't say that anyone could go into this area,' says Ms Ray.

'It's about building up a relationship of trust with the child, which always takes time - you have to go and sit in McDonald's with them if that's what they want; you have to sit on the floor and listen to garage music if it's going to make them accept you.'She remembers sitting in rooms where child clients have 'got incredibly upset, and thrown things at me', but says that 'you simply have to take it - don't underestimate the distress involved in the work'.

Distressing it undoubtedly is, but when a case goes well, it also seems to be a rewarding area of practice.

'I find children easier to deal with than my adult clients,' says Ms Henley.

'They're refreshing, they're honest, and they don't play mind games or try and manipulate people.' Ms Ray, despite the garage music and trips to McDonald's, agrees.

'They're delightful clients.

They're full of common sense and the court often underestimates their intelligence.

Adults have a lot to learn from kids - it's very easy to slip into the mindset of "adults know best", when often we don't at all.'