Child Custody

The Family Lawyer

Law practice in family and children jurisdiction is – it must be! – radically different from other areas. In an article that we published in a national newspaper (Público of 17th July 2020) we had the opportunity to express our views on this subject and now we do it in more detail.

Children’s best interests and the lawyer’s role we defend

Children’s justice is subordinated to a single end, the child best interest. And this stems from the national and international legal instruments such as the Regime Geral do Processo Tutelar Cível (RGPTC), the Lei de Proteção de Crianças e Jovens em Perigo, the Convention on Children’s Rights of the Child, the European Convention on the Exercise of Children’s Rights, among others.

The regulations in question oblige judicial authorities, police, social workers and, in general, any entities that interact with children, as well as lawyers, whether they represent one of the parties or the children themselves.

As we wrote in Jornal Público: “lawyers who intervene in cases within the jurisdiction of family and children are primarily obliged to defend the best interests of children.

Doing so is a civic, deontological and legal duty.

Civic, because the protection of children is the task of the whole society as a condition for the formation of tomorrow’s adults.

Deontological, because the defence of children should be considered integrated in lawyers’ duties towards the community, in terms of their professional status.

Legal, because it stems from several national and international diplomas that govern us”

Now, this legal linkage induces a model of exercising the law profession different from the traditional one. In fact, lawyer’s traditionally look after their clients interest with no other boundaries besides law and professional ethics and deontology. However, in the specific case of legal proceedings involving children, lawyers cannot lose sight of the child’s best interest and the defence of his client will only be legitimate as long as it complies with the child superior interest.

This model that we defend for family and divorce lawyers comes up against the traditional “barricade” way of law practising in which which two conflicting parts placed on opposite sides fight with the purpose of fulfilling their interests to the detriment of the other party’s.

The law profession model we defend here is another. Here both parties must work with the same purpose to defend the interests of a single party: the child. Parents may have different conceptions as to how that interest is best pursued, but the ultimate purpose of all those involved, including lawyers, must be only one: the defence of the child and his or her best interests.

In this context, lawyers should not assert the interest of their clients at any price, neglecting those that are the interests of children. The same is to say that, in defending the interests of his client, the lawyer cannot lose sight of children. As we argued in that article, “It is up to us, family lawyers, the obligation, which belongs to the whole community, to care for the men and women of tomorrow. And this is also done by protecting and preserving children in such a delicate moment as is the divorce or parental separation”

This model of family and children law practise that we defend implies that the lawyer must, first of all, assume the role of a pedagogue. Pedagogue because it advises and guides the Client to those that are the best solutions from the child’s perspective and that, for this reason, are also – or should also be – the best solutions from the perspective of their parents. If the lawyer’s client driven by spite persists in a path that aims at the pursuit of other objectives, the lawyer will not have an alternative other than leaving the case.

The case for multidisciplinary training for family and divorce lawyers

Children and young people have the right to participate in the process of forming decisions – judicial and administrative – that concern them. This is what follows from several international conventions signed by the Portuguese State (Charter of Fundamental Rights of the European Union, United Nations Convention on Children’s Rights and European Convention on the Exercise of Children’s Rights).

Now, the right to participate implies that the child is heard and their opinions taken into account in the decision – it is called the right to be heard.

Thus, the Council of Europe Committee of Ministers Guidelines on child-friendly justice provide for a range of information to be provided to children, namely when interacting with the justice system, such as the rights they enjoy, the instruments at their disposal to respond to violations of their rights, including the possibility of appealing to court, obtaining damages compensation, etc. (Guideline 1)

Likewise, the RGPTC provides that, when the child is heard, clear information about the child’s meaning and scope must be provided (art. 5/3).

The Lei de Protecção de Crianças e Jovens em Perigo also guarantees the child the right to be informed about their rights, as well as to be heard and to participate in the decision-making process (art. 4), further stating that “the process must take place in a way that is understandable to the child or young person, considering it’s age and degree of intellectual and psychological development” (art. 86)

The lawyer with intervention in this area must, therefore, and in the first place, be profoundly aware of the relevant legislation, both nationally and internationally.

Furthermore, the provision of complex information to a child, and to collect his opinion and will, requires the ability to be able to communicate with her, being certain that it will be different depending on whether a child is 5, 10 or 15 years old.

Thus the law professional who is responsible for making such communication must know how to adapt their language to the child’s age, development and maturity. An identical ability is required when it comes to interpreting what the child transmits. Hence, in addition to specific communication skills, this professional must have some elementary notions of child psychology and, if necessary, must be able to count on the help of technicians from other areas of knowledge to help him communicate effectively with the child and to know how to interpret her will.

It is for this reason that the Council of Europe Committee of Ministers Guidelines on child-friendly justice impose on all legal professionals working with and for the child, including lawyers, the need for multidisciplinary training, as well as specific training on how to communicate with children of different ages and stages of development and also with children in particular vulnerability situations (Guideline 15).

Regarding the specific case of the lawyer representing children Guideline 39 provides that “they must have training and knowledge about the rights of the child and related matters, receive continuous and in-depth training and be able to communicate with children according to their level of understanding”.

Thus, it is clearly evident that the lawyer who works in this jurisdiction must gather knowledge, not strictly legal, who enable him to comply with children’s rights to be duly informed and to express their opinion and will in the scope of the processes and lawsuits that concern them.

In 2016, the Portugese Bar Association, through its Regulation No. 9/2016, of January 6, proceeded to regulate specialization in children and family law not foreseeing, however, the need to guarantee these professionals have some training in scientific areas. Such Regulation only takes into account legal knowledge thus forgetting national and international injunctions on this matter Perhaps recognizing this omission, the Bar has not yet granted the title of specialist in children and family law to a single lawyer.

It is therefore urgent to change and adapt the Regulation to the international standards and good practices on this matter, providing for the indispensable legal knowledge that lawyers should have, but also other non-legal competences and skills, which become indispensable to the specific communication with the children.

Children's lawyers

In all proceedings, administrative or judicial, involving children, the result to be achieved must be clear to all those involved in the process, whether they are the parents, the lawyers, the judicial authorities or any other procedural actors. We clearly speak of the child’s best interest, which should be assumed as the compass that should guide them.

In case of parents, their interests can collide or diverge from the child’s best interests, namely in custody and maintenance lawsuits, which is why children have the right to have their own lawyer.
Since 2014, as a result of the European Convention on the Exercise of Children’s Rights, that, in Portugal, a child – understood as everyone under the age of 18 – has the right to receive relevant information, to express his / her opinion freely, as well as to be consulted and informed of the possible consequences of acting in accordance with its opinion.

The Convention also expressly recognizes, in Articles 4 and 9, the child’s right to be represented by a lawyer in cases where there is a conflict of interest that prevents parents from representing her.

The Council of Europe’s Committee of Ministers’ Guidelines on justice adapted to children, based on principles enshrined in the decisions of the European Court of Human Rights and in various international instruments relating to children, also play an important role in this regard, since they enshrined the right of children to be individually represented by a lawyer in the process. And this right should be recognized in all situations involving children, whether we are before administrative, civil or criminal jurisdictions, and are therefore relevant not only during the judicial process, but even before.

In these Guidelines it was defined that “Children should have the right to be individually represented by a lawyer in cases where there is, or may be, a conflict of interest between the child and the parents or other parties involved” (Guideline 37). In such cases “the competent authority should appoint an ad litem guardian or other independent representative to defend the child’s views and interests” (Guideline 42).

In Portugal, the RGPTC provides, in its article 18, the appointment of a lawyer to children in cases where their interests and those of their parents are not compatible, and also in cases the children themselves request the court to appoint one.

The appointment of a child lawyer was already foreseen in the first version of the 1999 Lei de Protecção das Crianças e Jovens em Perigo, for cases where minors commit acts that are treated by law as crimes. This possibility has been extended to any judicial process that concerns children, namely following the ratification by the Portuguese State of the European Convention on the Exercise of Children’s Rights which, in its art. 9, came to states the children right be assisted by a special representative whenever the interests of their parents may be in conflict with their own.

The child’s lawyer cannot, of course, be the same lawyer who sponsors the parents or one of them, due to a manifest conflict of interest that would occur between both defenses.

Training of the lawyer representing children must go beyond the law and must include knowledge in psychology and sociology areas. Notions about child psychology and communication training seem to be indispensable tools for the representation of a child. The child’s lawyer should also be able to rely, whenever necessary, on the help of other professionals to assist him in this difficult mission, namely psychologists, pediatricians and pedopsychiatrists.

In this cases, everything we mentioned above applies with special acuity and it is evident the need for children’s lawyer to have adequate multidisciplinary training in order to successfully carry out the very special mission of informing, advising, listening and acting in accordance with the desire of such a special client.

Lawyers attendance when children speak in court

Children and young people are entitled to participate in the process of forming decisions – judicial and administrative – that concern them. Now, the right to participate implies, from the outset, that the child is heard and their opinions taken into account in the decision – it is called the right to be heard. The right to be heard is a consequence of the participation principle, alongside others such as the right to information, to be represented by a lawyer, etc.

In realization of that right that assists them, the RGPTC now imposes, unequivocally, the mandatory hearing of the child from the age of 12 and, before that, whenever it has enough maturity, setting also the rules to which the inquiry must obey (arts. 4/1 / c, 5). Thus, and with regard to the processes regulated in the RGPTC, such as the establishment or modification of custody regimes, children will have to be heard and their opinion should be taken into account. This does not mean, of course, that what children verbalize is done, but that their opinion is taken into due consideration in the court decision.

Therefore, the question arises as to whether parents’ lawyers should be present at the child’s hearing, particularly in the context of custody lawsuits.

The question arises because many judges and lawyers, including myself, understand that the presence of parent’s lawyers could constrain and inhibit the child, thus conditioning the authenticity and spontaneity of the child’s statements.

It seems unequivocal that children and young people associate parent’s lawyers with the parents themselves, and imagine that whatever they verbalize will be relayed to their parents by the respective representatives, thus aggravating the frequent loyalty conflicts in these processes. Also, the child’s hearing in court is, in itself, a difficult and even anguishing moment, since it is a matter of revealing private, familiar facts, before strangers in an unknown and perhaps intimidating place. The presence of lawyers would therefore help to dispel the informal and reserved environment within which the hearing should take place.

Psychologists who have spoken out on the subject also advocate restricting the presence of lawyers.

Following this position, The Portuguese Bar Association approved in 2019, an Opinion by Rui Alves Pereira, whose content we fully subscribe, in which it is argued that the presence of parent’s lawyers in children hearings under art. 5, paragraphs 1 and 2, of the RGPTC should be restricted.

We couldn’t agree more!

In cases where children have been appointed their owns lawyers, this limitation does not apply. Whenever children are assisted by their own lawyers, different from the ones representing their parents, they must of course be present whenever children intervene in judicial acts, namely in their hearings, for obvious reasons.

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