NCJ Number
76736
Date Published
1978
Length
125 pages
Annotation
The representational stance assumed by a child's counsel should depend on the counsel's assessment of the child's actual capacity to make decisions, according to this Canadian study of children's rights.
Abstract
The development of children's rights and its implications for Canadian society are discussed. The limitations of law as a complete solution to the many issues involved in the children's rights movement is examined, as is the complex of interrelationships between children's rights and family integrity. The difference between moral and legal rights is also discussed; only legal rights are open to enforcement through legal process. The study also examines the question of the child's ability to participate effectively in legal proceedings which arises once a child possesses rights which can be enforced in the courts. The study suggests that lawyers should assess the child's actual capacity to instruct counsel and that the representational stance they assume should depend on the child's demonstrated ability to formulate competent decisions on the matters in issue. This task can be accomplished through the creation of rebuttable legal presumptions. Prior to the child's attaining 5 or 6 years of age an amicus curiae role for counsel is appropriate. Older children, under 12 years, generally are able to justify taking their preferences into consideration in the decisionmaking process. The report states that the counsel, as guardian, should reach an independent determination of client interests in light of these preferences. Children over 13 years of age will have developed a sufficient degree of capacity to instruct legal counsel. The concept of legal rights in the United States is examined in addition to social-psychological and clinical research. About 300 footnotes and 200 references are included. (Author abstract modified)