Born to instruct

by Morag Driscoll

Introduction to the Society's newly launched Child Protection and Representation Principles for Children's Lawyers

The Journal, December 2004, page 22

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Until the latter part of the 20th century, Scots law, like that of most nations, treated children as the property of their parents. The law spoke mainly about the rights of parents over their children, with little recognition or awareness of the rights or wishes of the child. It was assumed that parents could speak for their children, and there was little or no need for the direct involvement of the child. Attitudes in society towards children have changed, as recognised in the ratification by the UK in 1991 of the United Nations Convention on the Rights of the Child. Legislation such as the Age of Legal Capacity (Scotland) Act 1991 and the Children (Scotland) Act 1995 reflects those changes, and brings Scots law into line with the UN Convention. As all solicitors know, children now have the right of direct access to the legal system instead of access through their parents.

This has had a significant impact for family law practice as children have begun to instruct their own agents. The representation of children is a particularly challenging and sensitive area of practice, and should not be undertaken without an awareness of its particular demands. In many jurisdictions guidance is available to children’s advocates, and it was felt that the Law Society of Scotland should give guidance for Scottish lawyers. The result was the Child Protection and Representation Principles for Children’s Lawyers, launched by Cathy Jamieson on 4 November this year.

Another one on the way

This document is intended as a first stage in the provision of guidance. It is limited to private law, and is intended to change and grow as law and practice evolve. It has been approved by the Council of the Law Society of Scotland, and is intended to operate as a statement of best practice. It is not an official practice rule, but regard may be had to it should any question arise concerning a solicitor’s professional conduct or service. It is anticipated that work will begin on public law in the near future.

Children and young people are owed the same duties as adult clients, but acting for them has challenges that acting for an adult does not. It is simply not good enough to cut down normal practice to size to fit the child. A solicitor representing a child must tailor his or her approach to communication to the age and understanding of that particular child.

The areas of particular attention in the Principles are: accepting and obtaining instructions; communication; duties of representation; confidentiality and client legal privilege; conflict of interest; and withdrawing from acting.

Problems of understanding

Accepting and obtaining instructions from an adult is usually straightforward unless there is a question of mental illness or impairment. It is a much more complex question when the client is a child, particularly a young child. The agent must consider not only whether or not the child is able to understand matters sufficiently to be able to give instructions, but also whether the child actually does wish to be drawn into the legal process or is there at the wish of one of the adults in his or her life. These are not simple matters. They require care and a certain degree of perception. A further complication is that once having taken on a child as client, one must be aware that one will have to assess throughout the conduct of the case whether the child can continue to give instructions, or indeed still wishes to.

The best interests of the child are the paramount consideration in the areas of law dealing with children, and must be the paramount consideration for a lawyer representing a child. This can be challenging if the instructions given by the child are seen by the agent as not being in their best interests. This must be balanced with the solicitor’s duty to advocate the instructions of the client. A conflict may well lead to the refusing of instruction, or withdrawal from acting.

Withdrawing from acting for a child can be a much more delicate and sensitive process. Children tend to bestow their trust on a much more personal level than most adults, and sometimes the lawyer is one of the few trusted adults in a child’s life. Withdrawing from acting must be handled with the same level of care as accepting of instructions.

Bespoke communications

Good written and verbal communication is utterly essential to the successful representation of a child. Basic rules for communication are provided by the Principles. Communication with a child client must be specifically tailored to the needs of that client, and be appropriate to their age, understanding and circumstances. Children are much more likely to be dependent than adults on face to face communication, and great care must be taken at each stage of the case to ensure that the child does understand what is going on. It can be much more difficult for the agent, whose client may be much happier with frequent short meetings, and no telephone calls or letters. The child client’s needs are, however, not as open to adjustment as those of a demanding adult client, and it is the lawyer who must be willing to accept the needs of the child and to adapt their practice to them. An invaluable further resource is Alison Cleland and Ann Hall Dick’s Child Centred Family Law Practice.

Client confidentiality is the same for a child as for an adult, but can be complex when the child lives with an adult who gets to the post first in the morning. Care must be taken to consult the child about letters to them, and the Principles address the difficulties that can arise.

Conflict springs up easily

It might seem that the conflict of interest rules in representing a child would be the same as representing an adult. However, there are traps for the unwary. Because children are more vulnerable to influence it is important to avoid representing a child with whom you have or have had a personal relationship, or if you have had a personal relationship with their parents or carers. It may seem easier for the child to consult a familiar person, but real questions of influence and conflict of interest can arise. It is important that agents realise that even if a child’s views coincide with those of a parent, if that parent is represented by the same firm a conflict of interest automatically arises. When in doubt, check the Principles and if still unsure, it would be wise to consult the Law Society of Scotland.

The direct representation of children is still comparatively new, and is rapidly evolving. As it does so the training of lawyers representing children will also have to change. The profession is challenged by a new field of practice and will have to respond effectively to ensure that Scotland’s children get appropriate and effective representation. The Society hopes that the Principles can be of assistance to the profession in the provision of legal services to children. Copies have been sent to firms known to practise in civil litigation. It is anticipated that the document will change and evolve, and the Child Representation Working Party would be pleased to receive any comments, suggestions or questions. If further copies are required, they can be obtained from Moira Goll at the Society’s Law Reform Department.

Morag Driscoll is Convener of the Law Society of Scotland’s Family Law Committee

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