Role and Responsibilities of Counsel for the Child in Alberta: A Practitioner's Perspective and a Response to Professor Bala

Abstract

The representation of children and the role and responsibilities of counsel have recently become topics of discussion in Alberta. This dialogue includes consideration of whether, and in what situations, acting as a best-interests advocate, an amicus curiae, or a traditional advocate best meets the goal of reaching an outcome that serves the best interests of a child whose parents are engaged in family law and child protection disputes. This article proposes that the most appropriate role for counsel who represent children becomes obvious once the societal motivation for having such representation is clarified. In particular, counsel's role depends on whether children are accepted as rights-bearers, which also impacts the interpretation of statutory language, particularly "interests" and "best interests." and the test for capacity to instruct counsel. This analysis rejects Professor Bella's proposal that counsel should advocate their own opinions of the child's best interests because such an approach exceeds the training and expertise oflawyers and is not supported by current legal systems. The author joins Professor Bala in urging decision- and policy-makers to develop a coherent child representation program to address these and related issues.