The Roles and Content of Best Interests in Client-Directed Lawyering for Children in Child Protective Proceedings

Abstract

Lawyers for children in child protective proceedings in the United States must reconceive their role and their responsibilities. While lawyers for juveniles in delinquency and quasi-criminal matters have been understood, since In re Gault in 1967, to provide traditional legal representation for their clients, a lawyer for a minor in a child protective proceeding has generally been expected to play the role of guardian ad litem with respect to his clients. As guardian ad litem, the child's lawyer determines the child's best interests, and represents those interests through advocacy and testimony before the court. The book Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions, of which this Article forms two chapters, reviews, rejects, and replaces that guardian ad litem role. Through historical, statutory, and ethical analysis, the book demonstrates that the guardian ad litem role for lawyers for children has outlived its historical usefulness. Because it requires lawyers to make decisions which they are not qualified to make, and because it deprives children of the traditional competencies of a good legal representative, the guardian ad litem role doubly disadvantages child clients and should be abandoned.