Advocate calls for better representation for children in court

Tuesday 25 September 2018

Laws that see children in trust cases automatically appointed a lawyer, but not those facing being placed in care or separated from their parents need to be urgently changed to give them a proper voice in decisions that affect them, a local advocate has argued.

States Members last month signed a pledge stating their commitment to protecting the rights of the child, but Advocate Tim Hanson says that truly doing so should involve updating the Children’s Law.

He argues that it was conceived in an era where children were without a “proper voice”, and based on UK law that wasn’t correctly translated to Jersey. He noted that it was unusual that the introduction of the law was said to have “no implications in respect of manpower or funding”, given that it was “meant to achieve a radical overhaul in child protection.”

Advocate Hanson explained that for the past ten years, children caught in care or any other public law proceedings in the UK have been automatically assigned a Guardian and lawyer as part of the “tandem model." However, Jersey did not follow the UK’s example and no such automatic appointment is made here. It was however done for a brief period in 2008 until a court decision restricted such practice.

He said that some might find the approach “wholly perplexing, not least when public law children proceedings can see a child and parent being separated and, sometimes, forever.” 

The irony, he says, is that in trust cases “even an unborn child might have a lawyer appointed for them and, dare I say, even when the issue is just about money!”

It gives rises to cases such as one in 2010, which Advocate Hanson says shows that “even a child potentially being removed from a parent would not, in itself, be sufficient for the appointment of a lawyer for that child.”

Follow the link below for the full statement given by the Minister for Children, Senator Sam Mezec on the Pledge which States Members are being invited to sign today. https://t.co/wdaoAAyHDC pic.twitter.com/K6uBpoeQaO

— States of Jersey (@StatesofJersey) September 11, 2018

He argues that vulnerable Jersey children should not have more limited rights than children in the UK, where the representation of a child by a solicitor at all public law children hearings is deemed “essential.”

He is therefore urging the States “to insist that our vulnerable children benefit from the tandem model of representation by both Guardian and lawyer in all care and other public law proceedings.”

In addition, Advocate Hanson thinks that the role of the guardian should be clearly defined. In Jersey, the Jersey Family Court Advisory Service has been providing guardians for the past decade. He wrote: “JFCAS  are so very important for scrutinising the plans put forward for children and ensuring that the best options for vulnerable children are pursued. The Guardian, in particular, provides an important part of the “checks and balances” in public law proceedings.”

Pictured: Advocate Timothy Hanson thinks all children should be assigned a guardian and a lawyer when involved in legal proceedings.

However there is no official document setting out in detail the precise role that the JFCAS says a guardian should perform. Should they simply assist and befriend the child, represent them, or both, asks the advocate. For Mr Hanson, the guardian should be seen “as proactive and “muscular” in terms of role and powers; poised to challenge should the welfare of a child demand.”

The advocate also thinks more resources should be devoted to the service, mainly to revamp its website which he describes as “rather lost” and “not child friendly.”

“The image & message of JFCAS  should reflect the good work that they do in practice and their true significance to child protection which cannot be overestimated. It would be useful if the States could therefore bolster the role of JFCAS & support it in its ongoing evolution,” Advocate Hanson says.