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October 12, 2021 HUMAN RIGHTS

To Be a Competent Children's Attorney, Learn to Apply Principles of Child Development

by Carolyn Levenberg

Law school prepares students for how to think like lawyers who are representing adults. Courses include substantive classes such as criminal law, civil procedure, and property. The curriculum emphasizes the application of the law to the facts. As students, some receive trial skills that focused on questioning adults and the presentation of facts within the evidentiary rules—if they learn any practice skills at all. After law school and successful completion of a bar examination, a lawyer is presumed competent to represent any client. However, most law schools do not prepare lawyers to competently and effectively represent a child client.

A fundamental element of client representation is working with a client to determine their position. Without a foundation in understanding child development, the child’s attorney or advocate, used interchangeably in this article, is not equipped to do this in order to provide competent representation. The onus is on the lawyer to acquire the skills necessary to be an effective advocate, which, if you are representing a child, means having a foundation in child development.

The American Bar Association standards explicitly recognize that a child is a separate individual with potentially discrete and independent views. Further, the National Association of Counsel for Children (NACC) recognizes the need to understand child development for effective representation. In their policy, the NACC outlines that competent counsel for children and parents should include training on child development.

A child advocate is tasked with understanding the child’s interests. To do so, the child’s stage of development must guide their lawyer’s approach to representation. Unlike an adult, a child client is still in the process of developing physically, cognitively, and socially. The transitions in development impact a child’s ability to communicate, comprehend consequences, articulate their position, and understand an advocate’s role in their situation.

To maximize advocacy, and to achieve the desired result, lawyers need to educate themselves about child development (and the fact that child development varies considerably from child to child). It is not sufficient for a child advocate to rely on personal or anecdotal child-rearing experience. Children involved in child welfare proceedings are faced with unique experiences. Their experiences may have changed the trajectory of, or impeded the typical development of, the child. For example, the presence and impact of trauma for the child client can affect their ability to communicate or understand the language adults use with them.

To understand a child's interest, the child's stage of development must guide their lawyer's approach to representation.

To understand a child's interest, the child's stage of development must guide their lawyer's approach to representation.


A Short Primer to Get Started

A starting point for lawyers is examining their child client’s chronological age and understanding the significant normal developmental milestones for each stage of development. To make this task more manageable, practitioners can start by learning about child development in four recognized distinct periods: toddlerhood (2–4 years old), early childhood (4–6 years old), middle childhood (6–12 years old), and adolescence (12–18 years old). By learning about each stage of development, lawyers can focus on their client’s individual needs. Child development research is a growing field, but here are a few pointers to get you started:

  • Toddlerhood (2–4 years old) is characterized by the development of language, increased mobility, and learning self-control and self-regulation. Fantasy play is also part of typical development for this stage. At this stage, it is critical that children receive consistent, quality caregiving regardless of how their caregiver is related to them. Lawyers representing a toddler may underestimate their client’s ability to interact with them and, as such, may dismiss statements made by toddlers. A main misconception is that a lawyer does not need to ask their client in toddlerhood about their wants or experiences in age-appropriate language.
  • Early childhood (4–6 years old) involves a lot of changes, including making friends, make-believe play, creativity, and beginning to learn letters and numbers. Adults often focus on academic skills—such as learning the alphabet. But even more important than that are skills such as group play, sharing, and being able to separate from their primary caregiver during the day. It is not uncommon for children in care to have trauma reactions in school settings. As a result of a trauma reaction, a child may experience school exclusions where their attorney can be critical in advocating for their continued enrollment in school.
  • Middle childhood (6–12 years old) includes the formation of friendships, the formation of concrete operational thinking, the acquisition of new skills, self-evaluation, and peer play. Navigating friendships is foundational for later social skills. A lawyer without an understanding of the importance of friendship to a client’s development may underestimate the significance of a particular educational placement of the child and how it correlates to the child’s connections. A lawyer, when doing their due diligence by speaking with their client about their wants and experiences, should not discount the social network they discuss. Focusing on the child’s friendships may also present an opportunity to explore additional resources and support for the child and family as well as placement options when removal of a child from their family is warranted. It is also an opportunity for the lawyer to work with their client to schedule court hearings in the least socially disruptive way.
  • Finally, adolescence (12–18 years old) is a notoriously tumultuous time for youth. It is characterized by significant physical changes, the onset of formal operational thought, emotional development, and the formation of peer groups. Teen clients need to be represented in a way that ensures their voices are heard in all aspects of the advocacy. Teens may share new names and pronouns, express their desires of whom they want to see or be placed with more clearly, and need assistance navigating systems that don’t often listen to them. Lawyers also need to understand the importance of placement stability affecting school performance, special rights related to school stability, and how students in foster care, regardless of grades, may need additional supports as they are figuring out more about who they are.

Child development principles aren’t one size fits all. Approaching the representation of a child client from a “whole person” perspective allows a lawyer to find strengths in families that otherwise might not be apparent. The social system of a client includes their culture, which must also be taken into consideration. For example, a child’s role in their own culture may impact how they interact with the world and their lawyer. Children may also have different names and pronouns than the ones on their paperwork, and their lawyers should routinely ask how they want to be referred to. Self-identification, from gender and sexuality to cultural ties and ethnicity, among other identities, can and do change throughout a child’s life, and the lawyer must routinely ask and affirm how the child identifies. Lawyers should be aware of how culture, gender, and class also play into child development and make individualized decisions about how to best support each lawyer-client relationship.

Why This Matters: Benefits of Taking a Child Development Approach to Lawyering

Communication: There is a large body of research in these areas available to advocates about how child development stages affect speech and memory recall and how to understand what a child is saying. Understanding child development and applying it improve communication between the client and counsel, which is essential for adequate representation. This includes communication with the client both before and after court. For example, when interviewing clients, awareness of how to obtain information from child clients is imperative.

Eliciting information during court: Working with child clients requires learning about memory recall and how to clearly frame questions so the child understands what you are asking for, as well as using words appropriate to their current vocabulary level. It is not surprising that children are more likely to be able to testify in a more productive and complete manner when they are approached in a supportive and sensitive manner. Word choices such as “ask” versus “tell” can influence the information provided by a child, and leading questions for a child witness may not elicit correct testimony. Lawyers unfamiliar with the capabilities of children’s memory, recall, and ability to articulate experience may misinterpret statements as inconsistent and miss opportunities to present the court with developmental explanations for inconsistencies.

Preparing for court: Another way that a developmental focus can maximize advocacy is preparation. Spending time obtaining and analyzing information through a developmental lens will result in better representation of each client while improving the lawyer’s ability to accurately convey the client’s needs to the court. Preparing a child for court will also change based on their developmental level. It may take longer to explain what court is and the roles adults play to some children than others. This may seem like an overwhelming task for lawyers with high caseloads and insufficient time to adequately prepare—but the cost of not doing so is high. Without completing this task, a lawyer is an ineffective advocate who is not able to competently and effectively represent a child client.

Zealous Advocacy Requires Understanding Your Child Clients

Lawyers representing children have an obligation and duty to zealously advocate and competently represent their child clients. To truly understand their clients, the child development approach isn’t simply making broad generalizations the attorney believes are applicable to all children but is based on an individual approach with a developmental lens to maximize results for the child client.

Lawyers should familiarize themselves with the large body of work related to interviewing children and working with child witnesses. Lawyers should not assume any piece of information about the child’s experiences, wants, or thoughts. Lawyers must ask. Finally, child advocates cannot presume that a child will be traumatized by their participation in their own court proceedings. This concept initially seems counterintuitive but is supported by research.

Only a very small selection of law schools offer the ability to provide representation to child clients. The few that do train on child development and its application to practicing law. “We had one class on interviewing the child client, and it was all about child development, word choice, framing, and things like when children truly understand pronouns,” one lawyer explains recalling her time at the University of Michigan Child Advocacy Law Clinic. She explained it helped her understand how to speak not only to her child clients but also adults with developmental disabilities years later. Other law schools and bar associations should follow suit—offering courses on child development and its application to practice. But in the meantime, lawyers, it’s time you open the books and partner with experts to learn how to speak your clients’ developmental language.

In a courtroom full of adults making life-altering decisions for your client, it is critical that at least one person in the room can competently express that individual child’s wishes.

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Carolyn Levenberg

Child Welfare Law Specialist; Lecturer, San Diego State University School of Social Work

Carolyn Levenberg is a Child Welfare Law Specialist (CWLS) and has over 20 years of experience representing parties in the child welfare system. She is also a lecturer at the San Diego State University’s School of Social Work.