Children's Legal Representation


For rights to have meaning, effective remedies must be available to redress violations… So States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives.  These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance…

General Comment No. 5 (2003)
General measures of implementation of the UN Convention on the Rights of the Child
(arts. 4, 42 and 44, para. 6)

This section addresses legal representation and does not examine other forms of representation, support, guidance and information that may be available to young people in legal and administrative processes in Canada.

Several provisions of the Convention on the RIghts of Children (CRC) support the child’s right to have legal representation such as:

  • Article 3 – best interests of the child is a primary consideration in courts and administrative authorities and States Parties will take all legal and administrative measures necessary to ensure the child such protection and care as is necessary for his or her well-being
  • Article 4 - States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the CRC
  • Article 12 - a child may participate directly or indirectly in all matters affecting the child including in legal and administrative decision -making affecting the child, either directly, or through a representative or an appropriate body
  • Article 40(2)(ii) – a child accused of a crime shall have legal assistance to prepare a defence

Procedural safeguards such as competent legal representation for children are needed to guarantee the implementation of the best interests of the child (GC No. 13) and children’s access to justice. This is especially important when the child’s best interests are to be formally assessed and determined by courts and equivalent bodies such as administrative bodies. In particular, the child should be provided with a legal representative, in addition to a guardian or representative of his or her views, when there is a potential conflict between the parties in the decision (GC No. 14 at para 96).

Legal assistance can exist in a variety of forms including legal advocate, amicus curiae and guardian ad litem. Children’s legal representation (CLR) and the availability of such representation varies greatly across Canada: from jurisdiction to jurisdiction and from one area of law to another. CLR existed prior to the creation of the CRC (See MJJ McHale, “The Proper Role of the Lawyer as Legal Representative of the Child(1980) 18 Alta L Rev 216., which was written in the context of youth criminal proceedings in the 1970’s. New Zealand legislation has authorized the appointment of counsel for children in all custody and access disputes since 1968. The origins of Ontario’s Office of the Children’s Lawyer date back to 1826 when the Lord Chancellor of Upper Canada appointed a leading member of the legal Bar to be “guardian ad litem” of children to represent their interests in court; the Office of the Official Guardian, the predecessor to the current Office of the Children’s Lawyer, was formally recognized in 1881. In Alberta, the appointment of counsel for children in child protection legislation has existed since 1984. Children had standing under the Alberta Domestic Relations Act (now repealed) since 1942), however in recent years with increased attention to children’s rights, CLR has garnered greater attention and is a growing and developing area of the law.

A recent paper by Lovinsky and Gagne, Legal Representation of Children in Canada, Family, Children and Youth Section, Department of Justice 2015 summarizes the current state of CLR in Canada.

Children are most likely to be represented in Canada by legal counsel in criminal, child protection and family law matters. By statute, young people are required to have counsel in criminal matters; as a result, legal representation is available to them in this area virtually across Canada. In other matters, Alberta and Ontario have the most robust CLR.

The Lovinksy and Gagne article provides information about the Office of the Children’s Lawyer (OCL) in Ontario, which is a rich and respected model of CLR in Canada and worldwide, providing representation to children in a variety of family law (including child protection) proceedings and property rights matters. Justice for Children and Youth, now a Legal Aid Ontario clinic, also represents children in areas generally not offered by Ontario’s OCL. Alberta’s CLR has three service delivery points: Office of the Child and Youth Advocate – child protection; Legal Aid Alberta – custody and access/parenting; and the Children’s Legal & Educational Resource Centre (CLERC) – all civil law matters excluding child protection. CLR has recently become available in Saskatchewan in child protection matters. The Northwest Territories has an Office of the Children’s Lawyer for CLR in custody/ access and child protection matters.

Role and Responsibilities of Counsel

Child counsel’s obligations go beyond simply conveying a child’s views to decision-makers. A child’s lawyer must behave as much as possible as counsel for any adult, in accordance with federal and provincial/territorial professional Codes of Conduct. Competent legal representation of a child requires knowledge of these responsibilities, and more, given the particular vulnerabilities and capacity issues relating to children. Counsel must be particularly vigilant to follow procedural and evidentiary rules as closely as is possible to ensure proper representation of a child-client’s interests and fairness to the parties.

A controversial aspect of CLR, especially in child protection and custody/access/parenting matters, is counsel’s role or representational stance. Much has been written on this subject with the possible roles designated using various terms and described in numerous articles (see, for example, Bala, Hensley in Alta L Rev Vol 43, No 4 (May 2006)). From a child rights perspective, only a lawyer who acts as a child’s advocate is fully respecting a young person’s rights. The court is the client of any lawyer who takes a ‘friend of the court’ (amicus curiae) role; an adult person standing-in for the child is the client of a lawyer acting as a litigation guardian (guardian ad litem); and a lawyer who advocates only for the best interests of the child arguably has no client at all. CLR means explaining in a child friendly way the law and options available to the child client, taking a position consistent with the child’s expressed views or ‘instructions’, and advocating accordingly.

Representing a child’s ‘interests’ should not be confused with ‘best interests’ advocacy. A child’s interests are the individual child’s subjective ‘interests’, not interests as determined by some other individual or counsel’s own opinions or perspectives of what is in a child’s interests.


Subject to legislative provisions dictating otherwise, counsel is bound to maintain confidentiality and solicitor/client privilege with their child-client and to seek direction from the client before releasing any information acquired in the course of representing the young person.

Alienation in Family and Child Protection

In cases in which a child expresses a preference or becomes positional in litigation, the allegation of alienation is frequently raised. In “Children Who Resist Postseparation Parental Contact”, the authors, Fidler, Bala & Saini, (Oxford University Press 2013) indicate there is no accepted definition for parental alienation and therefore there can be no confirmed diagnosis nor remedy. Representing the child in custody and access/parenting proceedings can be particularly challenging when these allegations are made. Mental health experts often prefer that counsel not be appointed for young people caught in circumstances in which they are significantly manipulated by one parent. There is no easy answer for how to conduct oneself as child’s counsel in these circumstances.

Representing and advocating for a child who is estranged from one parent may lead to criticism and resistance directed to child’s counsel. As legal representative to the child, counsel must strive to protect the child’s interests, while balancing sometimes competing ethical obligations to the child and the court. Options to address these challenges may include defaulting to a ‘friend of the court’ position, or seeking to be removed as counsel as the role may become inconsistent with that of legal representative. Alternatively, a mental health assessment may prove to be a better approach, allowing the child’s views to be placed before the court while addressing the complex circumstances and interpersonal dynamics involved when a child becomes estranged from a parent.

Children’s Evidence

Another challenging issue in CLR, is placing a child’s evidence before the court. In many jurisdictions, but not all, courts are reluctant to hear directly from children (whether orally or by affidavit or judicial interview), particularly in the family law context. Practice varies from jurisdiction to jurisdiction and from court to court. A potentially effective method of adducing children’s evidence is partnership with a mental health professional through which counsel can maintain an advocacy role while ensuring that the young person’s relevant evidence is put to decision-makers. (See Strobridge v. Strobridge, (1994) 18 O.R. (3d) 753 (Ont. C. A.); and RM v. JS, 2013 ABCA 441) This is consistent with Article 12 of the CRC.

Party Status

In most instances of CLR, the child does not have party status. In consultation with the child, child’s counsel should consider whether seeking party status would be beneficial to the child’s interests. For example, in the family law context, a parent may seek to enforce a court order against the child. Party status may facilitate enforcement but place the child in a difficult position.

This section of the Toolkit provides a general overview of some issues inherent in representing children, particularly in non-criminal matters. Other areas of this Toolkit should also be reviewed, such as Child Participation, Best Interests of the Child, Capacity and Privacy, as well as specific topics under the Legal Areas section of the Toolkit which include Special Considerations and Practice Essentials related to the representation of children in particular practice areas. You may also wish to consider contacting an expert in this field for information, assistance and guidance if called upon to represent a young person.


  • Donna J. Martinson and Caterina Tempesta, Legal Representation for Children in Family Law Cases:  A Rights Based Approach, Access to Justice for Children, Child Rights in Action, CLEBC and CBABC Joint Conference, May 2017, Vancouver, B.C.
  • Donna J. Martinson & Caterina E Tempesta, Young People as Humans in Family Court Processes: A Child Rights Approach to Legal Representation,
  • (2018) 31:1 Can J Fam L (Forthcoming,  March 2018). 
    Department of Justice Canada, Legal Representation of Children in Canada, by Debra Lovinsky and Jessica Gagne, (Ottawa: Family, Children and Youth Section, Department of Justice, 2015), online.  
  • MJJ McHale, “The Proper Role of the Lawyer as Legal Representative of the Child” (1980) 18:2  Alta L Rev 216.
  • Nicholas Bala, “Child Representation in Alberta: Role and Responsibilities of Counsel for the Child in Family Proceedings” (2006) 43:4 Alta L Rev 845.
  • Dale Hensley, “Role and Responsibilities of Counsel for the Child in Alberta: A Practitioner’s Perspective and a Response to Professor Bala” (2006) 43:4 Alta L Rev 870.
  • Barbara Jo Fidler, Nicholas Bala & Michael A. Saini, Children Who Resist Postseparation Parental Contact (New York:Oxford University Press, 2013).
  • Nicholas Bala  et al., “Alienation, children and parental separation: Legal responses in Canada’s family courts” (2007) 33 Queen’s LJ 79.
  • Clare E Burns, “Child Clients: An Ongoing Ethical Dilemma”, online.