Giving Children Their Say in Court
Donald N. Duquette, Clinical Professor of Law and Director, Child Advocacy Law Clinic, University of Michigan Law School
Summary: The author summarizes the reasons for allowing children to participate in court proceedings affecting them and outlines some best practices for this participation.
I remember a fine juvenile court judge in my town in the mid 1980s who refused to have any children in his courtroom. “There will be absolutely no children in my court,” he would say. “The frank, argumentative give and take of the courtroom, and the difficult emotional issues we face there, make it no place for a child.” He would liberally interpret hearsay exceptions to avoid the need for child testimony. Motions to quash subpoenas for child testimony were easily granted. This judge’s attitude reflected the common view of the time.
Times have changed. Courts continue to struggle with the correct balance between shielding a child and granting a child the opportunity to participate. But the general trend today is to allow the child to be present, albeit with some limitations and exceptions.
Many states have statutes or court rules that presume that the child will appear or that require a child to be present if the child is old enough to communicate their wishes—unless excused by the court because the child chooses not to attend or attendance would be detrimental to the child. The Fostering Connections to Success and Increasing Adoptions Act of 2008 requires that a transition plan out of foster care be youth-directed. If the youth is in court, the judge can hear directly from the young person about goals and plans and thus ensure the youth is properly engaged in the planning.
Recent policy recommendations also favor children participating in the courtroom. The 1996 ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases says: “In most circumstances the child should be present at significant court hearings, regardless of whether the child will testify.” In August of 2011 the ABA House of Delegates adopted the Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings. The model act strongly supports child participation in court hearings, calling it a right and requiring notice to the child.
As courts consider their own policy regarding children in court, a judge is certain to have practical considerations ranging from transporting the child to accommodating the child’s presence in a busy court setting. What about school and other activities? Is the child going to understand the proceedings well enough to be able to participate meaningfully? These concerns can be and have been addressed. For example, the child’s guardian ad litem or lawyer, caseworker, foster parents, CASA volunteer, counselor, etc., may be going to the hearing, and one of them could transport the child. Telephonic participation or teleconferencing through Skype or a similar process is a possible alternative. Inviting the child to prepare a written statement to the court can be very meaningful to the child.
Hearings could be scheduled during school holiday breaks or later in the day when school is out. Hearings that have children present could be given priority on the docket to minimize wait time. The child could be excused from parts of the hearing where particularly emotionally laden or sensitive information is to be dealt with. The child could talk with the judge in chambers, perhaps with attorneys observing or listening remotely to accommodate the concern of ex parte communication. The child will likely see parents and siblings at the courthouse, which could be a good thing for most cases. The court could allow some time in a private place, supervised as required. The court could excuse a youth as appropriate.
Mere attendance is not sufficient, it should be meaningful. The child must be prepared to understand and participate as much as developmentally possible. Someone should explain the plan and the various options to the child. If electronic communication is used, the youngster should not be left alone. A trusted support person within the circle of confidence should be with the child to interpret the proceedings and communicate with the child’s legal representative. (See the May 2011 edition of the ABA Child Law Practice for a fine discussion of these issues.)
My own view is that child participation is good for the youngster—and for the court—nearly all the time. These children know what is going on in their families; we cannot shield them from it. It probably creates more anxiety in the youngster to wonder what is going on than to know firsthand. It certainly empowers the child and encourages the child to take responsibility for his future. From a procedural justice perspective, the child will generally benefit from seeing how seriously the court considers their case and from simply “having a say”.
Foster care alumna Lacy Kendrick Burk writes in the May ABA Child Law Practice: “Often when I speak on the subject I ask how many adults in the room would not want to attend a court hearing where decisions were being made about their lives. I have yet to see a hand raised in response to this question.”
A California foster youth alumni group came up with this slogan: “Nothing about us, without us.”