Refocusing the Lens of Child Advocacy Reform on the Child
When placed within family court jurisdiction, children need lawyers. Dependency [FN1] cases in the family court--in which parents are accused of abusing or neglecting their children--are fraught with constitutional tensions regarding the state's and parents' rights to regulate the well-being of children, [FN2] along with systemic pressures such as federal statutes and state funding [FN3] that substantially affect family relationships. Children sit at *482 the heart of these proceedings; indeed they are the very reason for them. Facing abrupt state intervention into their family life and the oft-accompanying physical removal [FN4] from their homes, these children travel a tumultuous and uncertain road from the time the alleged abuse or neglect occurs until the allegations are resolved. Threatened also with termination of parental rights, [FN5] they--for better or worse--face the potential permanent loss of their natural family life. The recognition that children are not mere property to be tossed between their parents and the state has prompted states to require representation of children as independent parties. Children possess unique rights and interests--to be free from harm and to access relevant social services, among others--that need separate advocacy, particularly in light of the frequent conflicts between the respective interests of parents and children. [FN6] Though a relatively common practice, child representation in dependency proceedings remains both inconsistent and disputed across the country.
How Children's Lawyers Serve State Interests
Those familiar with my views on representing children know that I have long raised arguments against providing young children with lawyers in most kinds of legal proceedings. In what are undoubtedly too many law review articles, I have written about the dangers associated with providing children with lawyers.' These dangers include liberating lawyers to argue for results they prefer (whether or not such results comport with what the child would want, what the law expects, or what is best for the child). For the most part, I have tried to ground my opposition to providing lawyers for young children on theory. Most prominently, I've argued that introducing a randomly assigned member of the bar who is free to determine for herself what position to advocate to a court threatens a balanced application of the rule of law and, at its worst, introduces a troubling degree of arbitrariness which raises profound questions about the rule of law. Many of these concerns are well-rehearsed by now and, in particular, were carefully examined in the important conference held at Fordham University School of Law in 1995, which serves as the foundation for this conference. My writings have, to a limited extent, influenced the field. My ultimate view against relying on lawyers for children, however, has not only been rejected widely, it has been buried by an avalanche of caselaw, statutes, and
Family preservation and child protection: Striking a balance
Nothing is more horrifying to the public than the brutal killing of an innocent child. Observing that "Last year 1,300 abused kids died--though authorities knew that almost half were in danger" Newsweek magazine began major coverage on family preservation asking "Is it time to stop patching up dead-end families?" Unquestionably children have died at the hands of families which have been "preserved" even though retaining children in the "preserved" family represented endangerment. In Chicago, the Tribune newspaper tracked child fatalities for one year and found more than 50 children in the Chicago area alone who died from abuse (Ingrassia & McCormick, 1994). Without a proven techr~ology to protect children who have been abused in their home, the Newsweek reporters questioned an approach--family preservation--which keeps children in a family where their health and safety is endangered. Obviously, children should not be taken from their family if it is possible to keep them safe at home. The problem is that the child welfare field has not developed a proven technology which can assure the adequate safety of endangered children. The risk with inappropriate removal of a child is that it may tear apart a family unnecessarily. However, the risk of leaving a child in an endangered home is a child fatality. Neither is acceptable, but protecting the child' s life must always be paramount.