Providing Access to Justice
- JLS believes that lawyers are the protectors of individual liberty and the custodians of social justice.
- JLS believes that children are rights-based citizens entitled to the full benefits of legal counsel.
Why Lawyers for Children?
- A JLS Essay
"First thing we do, let's kill all the lawyers."
Shakespeare, Henry VI
Often misused to criticize the work of lawyers, this quote from Shakespeare speaks directly to the critical role of lawyers in establishing and maintaining social justice. These words were spoken as part of a plot to install an autocratic leader and run a lawless and unjust society. Shakespeare understood the role of lawyers in a just society.
Lawyers are custodians and ambassadors of social justice through the protection and promotion of liberties, the rule of law, and due process of law. Unchecked power and injustice are the by-products of lawless society. The most victimized of lawyerless society are the disenfranchised poor and its youth.
A rule of law-based judicial system is perhaps America’s greatest gift to the world. A system of “laws, not men,” is the foundation for our just treatment of individuals and individual liberty. Its American by-products include the emancipation proclamation, women’s right to vote, the civil rights act, equal educational opportunity, and the peaceful transfer of governmental power. Lawyers create and enforce these by-products.
Children in Crisis
Children and youth live throughout the world as the most powerless and disenfranchised citizens. They lack fundamental access to justice in the forms of poverty, abuse, neglect, and governmental maltreatment. Over one-third of all children in the world are neglected in the forms of malnourishment, lack of basic immunizations, and lack of education. Many children are the subjects of violence through war and conflict. 
Great progress has been made in the U.S. toward protecting and empowering youth. There is greater recognition of children as a class entitled to legal rights and protection than ever before. Still, much work remains to be done. Despite considerable good law and policy, children are unrepresented and inadequately represented far too often. Twenty states still do not require attorney representation for abused, neglected, or dependent children in court. An uniformed debate on the role and duties of a child’s attorney continues to inhibit children’s access to justice. 
In 2007 there were an estimated 3.2 million referrals involving the alleged maltreatment of approximately 5.8 million children. Approximately two-thirds of these children were investigated and 794,000 were confirmed victims of child maltreatment. As a result of child welfare system action, approximately 500,000 children live in foster care. Approximately half of these children are in non-relative foster care, about one-third are teenagers and a majority exit foster care without reunification or adoption. The average time spent in foster care is significant and varies by state. More than 20% of children in care move at least three times and there are many instances of children moving seven or more times. In 2001, approximately 65,000 children experienced termination of parental rights.
For those children receiving foster care services in 2007, best estimates are that court action, requiring the appointment of a CAPTA compliant attorney, CASA, or GAL (attorney or lay) occurred in approximately 43% of cases affecting more than 53,000 children. 
In 1962, researchers led by Henry Kempe, MD published the article The Battered Child which documented the medical Battered Child Syndrome.  This seminal work recognized that a significant population of children was abused and neglected by their caretakers and required societal protection, irrespective of their social or economic condition. Courts soon recognized the “Battered Child” as a legal syndrome, admissible as evidence of abuse.
The Battered Child motivated the adoption of mandatory child abuse reporting laws in all states by 1967, which substantially increased the number of children who entered the child welfare system. In 1966 and 1967, the U.S. Supreme Court issued the Kent and Gault decisions mandating due process of law, including the right to legal counsel, when children were accused of delinquent conduct.  The decisions did not apply to child welfare cases, formally bifurcating the juvenile court into the delinquency and dependency (child welfare) court systems.
The Juvenile Justice System now operates as a due process-based system with a clear constitutional directive to provide legal counsel for children. Here, good progress has been made. Still, lack of competent counsel is a problem which needs our attention. 
Following the Battered Child, and the Kent and Gault decisions, the child welfare courts, sat available but largely un-resourced and unprepared to manage the population of abused, neglected, and dependent children coming before it. It would still be guided by the doctrine of parens patriae and the growing notion that the court should take actions that serve the best interests of children. Independent representatives for children were still rare at this time as it was the court’s authority and duty to serve society and children and there was no constitutional violation apparent in not appointing an independent representative for the child.
In response, Congress enacted the Child Abuse Prevention and Treatment Act (CAPTA) in 1974.  CAPTA has, since its original authorization, provided state funding to support state efforts to prevent and respond to reports of child maltreatment. All 50 states have enacted CAPTA-based laws. From its inception, CAPTA required an “independent representative,” called a guardian ad litem (GAL), for the child in child welfare judicial proceedings. In the most current version, CAPTA requires that: 1) a GAL be appointed to represent the child; 2) such GALs receive training appropriate to her role; 3) she either be an attorney or a court appointed special advocate who has received training appropriate to that role (or both); and 4) she obtain, first hand, a clear understanding of the situation and needs of the child, and make recommendations to the court concerning the child’s best interests.  CAPTA does not articulate the role and duties of the attorney functioning as GAL, except that the representative must generally obtain information and make recommendations to the court. The modern child welfare court GAL was developed in a seminal article by Bryan Fraser in 1976, “Independent Representation for the Abused and Neglected Child: the Guardian ad Litem.” 
In passing CAPTA, Congress relied on Mr. Fraser’s scholarship in choosing this kind of representation. Fraser’s ideal GAL was an independent representative for the child who assisted the court in its determinations by promoting the concept of the child’s best interest. This role was distinguished from a traditional attorney who would have been required to represent a client’s directives and would have been severally limited in her use of substituted judgment for a child who could not direct litigation. When attorneys are appointed in this role, therefore, a conflict arises: the attorney is bound by traditional rules of client confidentiality and direction, and the GAL roles of child protection and court assistance. To deal with this conflict, attorneys often assumed a hybrid role advocating both the child’s wishes and best interests. This tension has been termed “the dilemma of child advocacy.”  Proponents of the Fraser GAL model argue that a hybrid role is necessary to prevent attorneys form promoting a client position that could be harmful to a child.
The Representation Dilemma
Ann Haralambie describes the dilemma in The Child’s Attorney, as an inherent and perhaps irreconcilable flaw in the Fraser GAL model.  She argues that attorneys, bound by mandatory ethics rules to represent clients’ directives as fully independent lawyers, cannot compromise that duty by representing a concept of best interests, disclosing client confidence, and serving as a kind of judicial assistant and fact finder for the court. It is further argued that the GAL model denies the child the full benefit of legal counsel. It is also argued that the GAL is ill-equipped to make child best interest judgments and that such judgments are inappropriately influenced by the GAL’s personal social, economic, political, and religious ideology. Finally, critics of the GAL role argue that the entire concept of justice as a by-product of competing advocacy (i.e., agency, parent, and child all have client-driven representation) is destroyed by the hybrid attorney-GAL role.
CAPTA mandates representation of all children and youth subject to child welfare court proceedings. Moreover, independent representation/advocacy is essential to child safety, permanence, and well-being. The CW court system is fundamentally an advocacy/adversarial based system. The judge determines outcomes based on facts and legal arguments presented by the parties’ independent advocacy. Generally, each party - the state/CW agency, the caregivers, and the child - are represented by advocates. In the case of the CW agency and caregivers, these advocates are lawyers bound to zealously represent their clients’ position. If children are deprived of this same advocacy, the court will be unable to include the child’s position in its analysis of information. CW court-involved children represent a unique client population. They have dramatically varying degrees of capacity to understand and participate in their litigation. They are, as a client population, the least situated to speak for themselves in a complex court process. They require educated, trained, and well-resourced advocates to promote their interests. This proposition is now widely accepted. In its publication Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases the National Council of Juvenile and Family Court Judges (NCJFCJ) stated: “Each party must be competently and diligently represented in order for juvenile and family courts to function effectively.”  ABA Standards support this principle.
Justice for juveniles is the by-product of good judicial decisions. Such decisions are only as good as the information upon which they are based. Without a just system of laws, combined with competent advocacy, justice for children will not be achieved. This is true of all litigants but particularly so for children who are least capable of speaking for themselves in a judicial proceeding. 
The JLS Response
Social justice and access to justice for children and youth is the responsibility of lawyers,  the philanthropic community,  government, and all of us as citizens. Yet this need is currently unmet; our response has been inadequate. Producing an effective response is the mission of the Juvenile Law Society.
JLS programs train lawyers to serve as effective legal counsel for children and our policy advocacy and system improvement efforts create and sustain effective court systems. JLS believes that it takes a village to raise a child and we operate under the principle of collaborative leveraging, whereby program effectiveness is enhanced through financial and program partnerships between child serving agencies and donors.
 UNICEF; http://www.childinfo.org/  American Bar Association, America’s Children at Risk: A National Agenda for Legal Action (1993); American Bar Association, America’s Children Still at Risk (2001); Survey of State Statutes Regarding Legal Representation of Children, ABA (2005).  Marvin Ventrell, The Practice of Law for Children, Vol. 66 No. 1, MT Law Review (2005).http://www.hunter.cuny.edu/socwork/nrcfcpp/info_services/fact-sheets.html. America’s Children in Child Welfare Law and Practice: Representing Children, Parents and State Agencies in Abuse, Neglect, and Dependency Cases, Bradford (2005). http://www.hunter.cuny.edu/socwork/nrcfcpp/info_services/fact-sheets.html. 181 JAMA 17 (1962).See, People v. Jackson, 18 Cal. App. 3d 504 (1971), Estelle v. McGuire, 502 U.S. 62 ((1991). 383 U.S. 541 (1966) and 387 U.S. 1 (1967). ABA / Juvenile Law Center, Robert Schwartz Report 42 U.S.C. §§ 5101 et seq. (enacted as Pub.L. No. 93-247; for a detailed consideration of the most recent version of CAPTA, see; http://www.acf.hhs.gov/programs/cb/laws/capta03/capta_manual.pdf ). 42 USC § 5101 et seq. 13 CAL. W. L. Rev. 16, 17-18 (1976).See The Child’s Attorney, Haralambie, ABA (1993). The Child’s Attorney, Haralambie, ABA (1993). NCJFCJ Resource Guidelines (1995). The Practice of Law for Children, Ventrell, M., Montana Law Review, Vol. 66 No.1 Winter 2005 Lawyers are citizens with a special responsibility for the quality of justice Under the ABA Model Rules Philanthropy and Public Policy, Kretman, K., Center for Public and Nonprofit Leadership, Georgetown Public Policy Institute