Parents in a family dispute usually have their own lawyers.
But what happens when the child's interests, position or legal rights require independent representation?
In appropriate Alberta family cases, a lawyer may be appointed to act as child counsel.
The role is different from the lawyer representing either parent, a Voice of the Child professional, a parenting coordinator or a psychologist conducting a parenting assessment.
Child counsel represents the child within the scope established for the appointment.
Why Would a Child Need a Lawyer?
Most family cases do not require independent counsel for a child.
Parents and the Court ordinarily address the child's interests through the family proceeding.
However, some disputes become sufficiently complex or conflicted that independent legal representation for the child may be appropriate.
Examples may involve:
- severe parental conflict;
- a mature child's strongly expressed position;
- allegations of parental alienation;
- estrangement;
- family violence;
- disputed wishes of a child;
- difficult parenting-time disputes;
- relocation;
- a child refusing contact;
- competing allegations concerning the child's interests; or
- circumstances where the child's position may differ from either parent's position
Whether child counsel should be appointed depends upon the particular case.
Is Child Counsel the Same as a Voice of the Child Report?
No.
This is an important distinction.
A Voice of the Child process is designed to provide information about the child's views and needs.
Child counsel is a lawyer appointed to represent the child in the legal proceeding within the scope of the appointment.
A lawyer's professional role is fundamentally different from that of a psychologist, social worker or parenting evaluator.
Is Child Counsel a Parenting Expert?
No.
Child counsel does not normally conduct a psychological evaluation of the family.
Where the Court needs expert evidence concerning parenting capacity, family dynamics, psychological issues or therapeutic needs, a Practice Note 7 intervention or Practice Note 8 parenting evaluation may be more appropriate.
Different professionals answer different questions.
Who Does Child Counsel Represent?
The child.
Child counsel does not represent the mother or father.
This means parents should not expect the child's lawyer to become an advocate for whichever parent believes the child's position supports their own case.
The lawyer's duties are to the child within the applicable professional and Court-appointed role.
Will Child Counsel Tell the Court What My Child Wants?
The role can depend upon the child's age, maturity, circumstances and the terms of appointment.
Children's legal representation can involve different approaches depending upon the case.
The Court's order and the lawyer's professional obligations help define the role.
Parents should therefore avoid assuming that appointment of child counsel guarantees a particular outcome.
Can Parents Contact the Child's Lawyer?
Parents must respect the independence of child counsel.
Communication procedures may be established by the lawyer or Court.
A parent should not attempt to pressure the child's lawyer, coach the child before meetings or demand confidential information that the lawyer is not entitled to disclose.
Is the Child's Conversation With Their Lawyer Confidential?
Lawyers generally owe duties of confidentiality to their clients.
However, the exact professional obligations, scope of representation and any applicable legal exceptions should be considered in the specific case.
Parents should not assume that they are automatically entitled to know everything discussed between their child and the child's lawyer.
The independence of the lawyer-client relationship is one of the reasons child counsel can be valuable.
Does Having Child Counsel Mean the Child Decides the Case?
No.
The Court remains the decision-maker.
A child's views and preferences are factors in the best-interests analysis, with weight depending upon age and maturity.
Child counsel can help ensure that the child's voice and legal interests are appropriately represented, but the child is not simply handed authority to determine the parenting arrangement.
Child Counsel in Alienation and Estrangement Cases
Independent legal representation can become particularly important where parents disagree sharply about why a child rejects one parent.
One parent may allege alienation.
The other may allege estrangement caused by the rejected parent's behaviour.
The child may hold views that neither parent's description fully captures.
Child counsel can provide the child with an independent legal relationship rather than requiring the child to communicate entirely through competing parents.
Does Child Counsel Replace a Parenting Assessment?
No.
A family may potentially require both legal representation for the child and expert assessment, depending upon the issues.
For example:
Child counsel asks: What are the child's legal interests and position within the proceeding?
A parenting evaluator may ask: What parenting arrangement best addresses the child's needs based upon a professional assessment of the family?
The roles should not be confused.
Who Pays for Child Counsel?
Costs and funding arrangements can vary depending upon the circumstances and mechanism through which counsel is appointed.
The Court order may address payment.
Parties should obtain specific advice concerning cost responsibility rather than assuming child representation is automatically publicly funded.
Does Alberta Have a Specific Child-Counsel Order?
Yes.
The Alberta Court of King's Bench maintains a specific Order to Appoint Child's Counsel among its family-law forms.
That reflects the established ability of the Court to use independent child representation where appropriate.
When Might Child Counsel Not Be Necessary?
Independent counsel should not automatically be sought simply because a child disagrees with a parent.
Other processes may answer the relevant question more proportionately.
For example:
- a Voice of the Child intervention may be sufficient to obtain the child's views;
- a parenting coordinator may assist with implementation disputes;
- a therapeutic intervention may address relationship breakdown;
- a parenting assessment may investigate broader family dynamics
The appropriate tool depends upon the problem.
Protecting Children From Adult Litigation
Whether or not child counsel is appointed, parents should avoid using their children as substitute lawyers or witnesses.
Do not:
- ask the child what they will tell their lawyer;
- rehearse answers;
- criticize the child's lawyer;
- demand reports after meetings;
- tell the child which result to request; or
- suggest that the child is responsible for winning the case
The objective of independent representation is to reduce–not increase–the child's exposure to parental pressure.
Speak With an Edmonton Family Lawyer About Child Counsel
Where a child's voice or independent interests become central to a parenting dispute, the Court may need a process that protects the child's position without placing the child directly between the parents.
Ulasi Law Group assists parents in Edmonton and throughout Alberta with child-counsel applications, Voice of the Child matters, parenting assessments, alienation and estrangement cases, and complex parenting litigation.
Contact our family-law team to discuss whether child counsel or another intervention may be appropriate.
This article contains general legal information only and is not legal advice.
Frequently Asked Questions
Can a child have their own lawyer in Alberta family court?
Yes. In appropriate circumstances, independent counsel can be appointed for a child.
Does the child's lawyer represent one of the parents?
No. Child counsel represents the child within the scope of the appointment.
Is child counsel the same as a Voice of the Child report?
No. Child counsel provides legal representation. A Voice of the Child process gathers information concerning a child's views and needs.
Is child counsel the same as a parenting assessment?
No. Parenting assessments involve specialized professional evaluation rather than legal representation.
Does my child get to decide where they live if they have a lawyer?
No. The Court continues to determine parenting issues according to the child's best interests.
Can I ask the child's lawyer what my child said?
Parents should not assume they are entitled to confidential communications between the child and the child's lawyer.
Can child counsel be useful in parental alienation cases?
Potentially, particularly where the child's independent position is disputed or difficult to distinguish from the competing positions of the parents.