The Colorado Supreme Court recently held that there was no attorney/client relationship between children who are the subjects of abuse and neglect proceedings and their court-appointed guardians ad litem (attorneys appointed to represent the child’s “best interests” in a court proceeding). (note: the link is to the court opinion, which includes details of abuse).
More discussion behind the cut:
As a result, a guardian ad litem could be compelled to testify in an accused abuser’s criminal trial, despite the unwillingness of the teenaged victim to testify.
According to the dissent:
Because children will no longer have the protection of the attorney-client privilege, guardians ad litem will be required to disclose information about their wards even when it is not in the child‟s best interests to do so. This outcome, which appears to be based on a generalization that a child is incapable of being involved in the legal process, is at odds with a child’s fundamental right to be represented in court, and fails to protect the legal rights of children.
The dissent goes on to say that, in limited circumstances, guardians ad litem should be able to disclose confidences by children to the extent necessary to serve their best interests – for example, to ensure that a child is not returned to the custody of the abuser, especially when the child is too young to make an informed decision herself – but that this choice should be for the guardian to make in consultation with the child and in accordance with the best interests standard.
I am with the dissent here. This decision is likely to make it much harder for guardians ad litem to gain the trust of their clients, and effectively denies legal representation to children during the course of possibly the most life-changing legal proceeding they may ever be involved in. Sadly, I think this is another case of courts’ mistakenly assuming that children’s best interests are best served by putting already-known abusers in jail, even if this comes at the expense of institutions created to foster reporting by children by guaranteeing confidentiality.
I certainly think that abusers should be prosecuted to the full extent of the law, but to me what’s more important is ensuring that children are able to escape abusive situations in the first place. It’s not uncommon for a child to choose not to disclose abuse if she fears it will land the abuser in jail. I generally disagree with the wisdom of such a choice, but it’s a pretty common one. If giving the child the right not to have his statements used in a criminal proceeding will make him more willing to disclose abuse to a guardian ad litem and thus escape to a better custody situation, it’s clearly worth it. In fact, many such children may ultimately decide to cooperate with a prosecution once they have had some time to settle into a safer situation and process their experiences.
(via ABA Journal)