When Should a Child Have a Lawyer?
A recent application saw the court well outline the factors to be considered when assessing the need for a lawyer for the child. Is the child’s age and maturity such that their view should be heard with the assistance of independent counsel? This case, DCE v DE, also explored certain circumstances that would favor the appointment of independent counsel for the child in certain situations. Justice K.F. Feth reminds that “no specific age is a threshold for appointing counsel; nor invites a presumption that the child’s views should be taken into account.”
In the Alberta court of Appeal case RM v JS as cited within DCE v DE, in speaking to appointment of counsel for a child, it was ruled “that the inquiry is complex, especially for a child as young as 10 years of age. Eliciting some expertise through professionals knowledgeable about the child might be desirable.” RM v JS writes that as a child reaches teenage years assumptions about their maturity can be applied with greater comfort as children at that age have had the opportunity to make significant decisions for themselves. However, before such age is reached for a child, relevant considerations should be assessed prior to appointing counsel for a child. These include:
- The nature and complexity of the issue for which the child’s input is sought;
- Whether the child has expressed an interest in offering a viewpoint;
- Whether the child is primarily being asked to provide facts rather than engage in higher reasoning such as drawing conclusions or formulating opinions;
- Whether the child’s decision-making might be compromised by the child’s relationship with a party, including emotional attachment, dependency, estrangement or undue influence;
- Whether the child has the ability to gather relevant information and to weigh competing benefits and disadvantages when developing a viewpoint;
- Whether the child reasonably appreciates the consequences of expressing a viewpoint;
- Whether the child has made good decisions of a substantial nature in other situations;
- The child’s performance and behaviour in school;
- Assessments of the child’s behaviour and decision-making capacity provided by professionals such as psychologists, counsellors, physicians and teachers; and
- Parental observations about the child’s behaviour and decision-making ability.
There are certain circumstances that will normally favor the appointment of counsel for a child. DCE v DE discussed the precedent set in another Alberta Court of Appeal case, Puszczak v Puszczak, where a non-exhaustive list of categories was generated where there is a favor for appointment of independent counsel for the child:
- cases involving allegations of child abuse;
- cases where an apparently intractable conflict exists between the parents;
- cases where the child is seemingly alienated from one or both parents;
- where real issues arise about cultural or religious differences affecting the child;
- where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge on the child’s welfare;
- where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that the child’s welfare is seriously impinged;
- where issues arise about significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child;
- any case in which, on the material filed by the parents, neither seems a suitable guardian;
- any case in which a child of mature years is expressing strong views, which if given effect would involve changing a longstanding custodial arrangement or a complete denial of access to one parent;
- where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently moved to a place within the jurisdiction that would greatly restrict or for all practical purposes exclude the other party from access to the child;
- cases proposing to separate siblings;
- custody cases where none of the parties is legally represented; and
- applications to the Court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not properly represented by one of the parties.
The factors and circumstances as set out in DCE v DE lay the groundwork for assessing whether it is likely that independent counsel for the child would be granted in court. DCE v DE also identifies issues that should be addressed when choosing or customizing the role for the independent counsel of the child, and also outlines the framework that a court can follow when considering a request to appoint independent counsel for a child. All in all, DCE v DE is a “go to” case when approaching the issue of independent legal counsel for a child and DCE v DE should be addressed in any application seeking such relief.