Representation and Assistance

The right to legal representation or assistance in judicial proceedings is protected in international human rights law. This right is strongest in cases involving criminal justice and deprivations of liberty. For example, Article 14 ICCPR protects the right to free legal assistance in criminal proceedings, ‘in any case where the interests of justice so require’. The same article includes a right to the free assistance of an interpreter in criminal cases, if the person ‘cannot understand or speak the language used in court.’ These rights are also guaranteed to children in criminal proceedings according to Article 40(2) CRC. The right to ‘prompt access to legal and other appropriate assistance’ in cases involving a deprivation of liberty of children is protected in Article 37(d) CRC.

Article 13 CRPD protects the rights of all persons with disabilities, including children with mental disabilities, to access justice, in all civil, criminal and administrative proceedings. However, the text of the Article does not refer specifically to a right to legal representation or assistance. Instead, it requires States to provide ‘procedural and age appropriate accommodations’ to ensure effective access to justice for all persons with disabilities in all legal proceedings. Gibson argues that Article 13 CRPD contains an implied right to legal aid for persons with disabilities in certain cases. She states:

“[I]n the absence of forums which are simple enough in both procedure and substantive law to allow disabled citizens to have a fair hearing without the assistance of a lawyer — the convention requires states to provide legal aid to people with disabilities who cannot access private legal assistance and that, at a minimum, legal aid should be available for cases involving breaches of the human rights referred to in the treaty.”

Professionals working with children and families need to be trained on the relevant rights to legal aid, representation and assistance for children within their country and region. Following training, professionals should be able to make appropriate referrals to the relevant authorities to ensure access to effective representation and assistance for children asserting their human rights or challenging a human rights violation in the domestic courts. In order to ensure effective access to justice, such representation and assistance must be accessible to children with mental disabilities, discussed further here. Practical tools are available to help lawyers to make their representation more child-friendly and disability-sensitive. One example of good practice is this report by UNICEF and the UN Office on Drugs and Crime, which sets out criteria for developing child-friendly legal aid in Africa. The report covers three core competencies for child-friendly legal aid: interviewing child clients, counseling and negotiation, and effective advocacy. The report’s advice on interviewing child clients is not specific to children with mental disabilities but gives some helpful tips which are relevant in this context:

“In addition to assessing a child’s communication ability, the legal assistance provider should endeavor to ascertain information about cultural, social, religious, and historical factors that may influence the legal aid provider’s ability to communicate effectively with the child and his or her family.  Without this knowledge, efforts to provide effective legal aid may be compromised because of lack of communication between the legal aid provider and the child and her family, and the setting of unrealistic, irrelevant, or impossible goals. Legal aid providers must understand how non-legal factors impact the actions and decision‐making processes of children and their families.”

In addition to traditional legal representation, unique forms of assistance may be required for children, such as the appointment of a non-legal advocate or guardian ad litem to represent the views of the child in the relevant proceedings, for more see here.

Professionals should be aware of all forms of representation and assistance which are available to children in these cases and support children to access these mechanisms as required. Legal professionals and other representatives or assistants for children in judicial and administrative proceedings have a responsibility to ensure their services and supports are accessible to children with mental disabilities and can meet their needs.

Some specific tensions arise for professionals working with children with mental disabilities in ensuring equal access to this right to representation and assistance. These include the overarching principle of the ‘best interests’ of the child set out in Article 3(1) CRC and Article 7(2) CRPD, which might conflict with the child’s own wishes or views. However, all children, including children with mental disabilities, have a human right to have their views heard according to Article 12 CRC ‘in accordance with the age and maturity of the child’. More information on ascertaining the views of the child to ensure their effective participation in proceedings is available here.

Conflicts of interest can arise in the provision of representation and assistance. For example, a professional appointed to represent the child’s views in a legal proceeding (such as a guardian ad litem) may also be under a legal obligation to provide a recommendation to the court as to the course of action which he or she believes is in the child’s best interests (which may be different from the outcome desired by the child). In these cases it is important for professionals to make children aware of this dual role – and to inform the child in advance of any ‘best interests’ determinations which may conflict with the child’s will and preferences. Existing studies such as Ruegger’s work, {link to annotated bibliography} show that children are often unaware of this dual role.

Other conflicts of interest may arise where the person appointed to represent the views of the child also has a role in gatekeeping resources required to implement the court’s decision. Therefore, additional safeguards are required to ensure that conflicts of interest are minimised in the provision of representation and assistance. In accordance with the requirement to give due weight to the child’s views in light of his or her age and maturity, it is crucial that professionals do not discriminate on the basis of the label of a mental disability which may be ascribed to the child. More information on the duty not to discriminate is available here.

In order to achieve these training and educational goals for professionals, the key skill required will be effectively communicating with children with intellectual and psychosocial disabilities. This should involve the development of skills in non-verbal communication methods, including alternative and augmented communication, facilitated communication, and total communication. Since legal professionals, for example, may not always be trained in these methods themselves, they need to be trained to recognise situations in which additional communication support is required to ensure they can effectively receive instructions from, and thus, represent, their child client. Practical guidance for questioning children in civil, criminal and administrative proceedings are available – such as this toolkit from the Advocacy Gateway in the UK. It contains advice for lawyers and professionals working in the justice system in communicating with children, including these tips:

“Ask short questions with common words and phrases, one idea at a time. Repeat names, places and objects often. Follow a logical, chronological order, explaining the subject and when it is going to be changed. Be aware of literal interpretation and check directly on understanding. Do not rely on children (even adolescents) to say they do not understand.”

For many children with disabilities, the key communication supports in their lives are their parents, family and friends – so it will be important for professionals to engage with these supporters to ascertain the views of the child. Multi-disciplinary perspectives can also enhance communication, with the involvement of educators, social workers and other supporters who know the child well. This consultative process, while important, should not replace the duty of professionals to attempt to communicate directly with the child, wherever possible, and professionals should be conscious of potential conflicts of interests in determining the views of the child which may emerge from consultation with other people in the child’s life.

Some examples of good practice in communication are discussed further here and include the Mosaic approach which gathers children’s perspectives through talking, walking, making and reviewing together (including children taking photographs, making drawings, and audio-recordings) and the Three Houses model which allows children to draw and comment on a house of good things, house of worries and house of dreams.