Keywords

A photograph illustrates the discussion of a group of pupils.

Introduction

In L’internationale des républiques d’enfants—a recent book, in which historians of childhood narrate the now-forgotten social experiment in “children republics”, that emerged in different parts of Europe between 1939 and 1955—one picture attracted my attention. It is an old, black-and-white photograph. In a garden full of sun, children are performing court proceedings. There are those who seem to be child-attorneys, a child-defendant and a child-plaintiff, and no adults. A no-more-than-ten-year-old judge is reading the court decision. Other children—all boys—are listening to him, standing without motion, their postures translating a state of inner tension, rather than play1 (Boussion et al., 2020).

This scene, where all power roles seem to be occupied by children, creates a rather disturbing feeling in the observer. In this image of the child-driven legal world there is something artificial. Is it because, I first asked myself, the idea that children are incapable of making justice for themselves is so hegemonic that we interiorized it entirely, and the whole proceeding appeared as a masquerade?

But later I realized that this is precisely not what adequate justice for children would look like. What we seek for children is not an artificial place where some child-law might be enacted, because their “jurisdiction” would extend only to the limits of this thoroughly circumvented micro-society, without a real impact on the broader one, the world of the adults. Rather, we seek their fuller and more immediate inclusion in the legal sphere that adults share with children. In practice, as Boussion et al.’s historical research demonstrates, in these places, called Children Villages, disenfranchised kids, some of whom had just escaped the Nazi concentration camps, were merely performing the democratic fantasies of their adult beneficiaries.

In the twenty-first century, despite the near-universal ascendance of children as independent actors and rights bearers, reiterated by the UNCRC (UN Convention on the Rights of the Child), children universally lack legal capacity to autonomously act upon these rights in a court of law. In this context, the indispensability of adult legal actors as conduits to children’s access to justice is an undeniable reality. This chapter interrogates the meaning of children’s professional representation in courts for a broader theoretical reflection on children’s representation in the legal realm. How could we adequately and, more importantly, realistically model the child-adult nexus in the process of justice-making for children?

Some international bodies of children’s rights governance suggest that the significant barriers faced by children on their ways of approaching the law can be overcome by means of rendering justice “more accessible”, “more friendly” or more “child-centered”. This chapter takes a different approach. Rather than assuming that children’s access to justice is contingent on the “friendliness” of the systems of justice they face, I argue that it is contingent on their capacity to act upon these systems, while exercising their right for independent legal counsel. This argument bridges the justiciability of social and political grievances, as part of active citizenship, with Fraser’s reflections on representation as a third necessary dimension of social emancipation, alongside redistribution and recognition (Fraser, 2005).

The arguments in this chapter should not be interpreted, however, as a statement that courts and litigation are the only, or even the central, means to achieve more justice for children. Rather, this chapter considers children’s lack of legal standing as an important exclusionary factor, and therefore frames children’s representation by adequate legal professionals as one of the important dimensions of their access to justice. Furthermore, it considers legal professionals, representing children in both domestic and international arenas, as significant actors in the development and interpretation of children’s rights.

The argumentation in this chapter is organized in two sections. In the first section I provide a frame to the discussion of children’s representation in courts by delineating such adjacent concepts as children’s legal capacity and legal standing, highlighting the pitfalls of the narrative on child-friendly procedures, and discussing the ways to adequately model the avenues through which children access justice. In the second section I move to a nuanced description of the professional world of lawyers, adjudicating children’s social, economic and political rights in different jurisdictions, including the European Court of Human Rights. In the second section of the chapter, I ask: how do lawyers, defending children in courts, position themselves vis-à-vis their clients, the state, the legal and moral systems they operate within? Do they think only individually and locally, or also collectively and globally? To what extent their practice may effectively contribute to the advancement of social justice for children?

In this chapter, I outline the main challenges of child professional representation, stressing that while it does not escape the reproduction of social hierarchies and epistemological domination, it cannot be reduced to them, leaving some hope for mutually significant alliances between children and their adult defenders in the courtroom, and beyond. I conclude by proposing a tripartite model which is a synthesis of three available formats of child representation in courts. Drawing on empirical material collected through interviews and fieldwork observation, this chapter interrogates the meaning of children’s professional representation in courts for a broader theoretical reflection on different instances of children’s representation that are brought together in this volume.

Section 1

Understanding Children’s Access to Justice: From an “Artificially Constructed Incapacity” to Effective Legal Assistance

Childhood is a large and complex category that serves descriptive, normative and regulatory purposes. Despite the remarkable ascendency of children’s rights as an international legal norm, substantiated in a near-universal ratification of the CRC, Pupavac (2001) pointed out an inherent paradox in legal reasoning, manifested in CRC, that separates the child, as a right-holder, and the moral agent who is empowered to act upon these rights. Children do not hold office (create law), do not vote (validate law, or elect others to create new law) and only rarely bring cases to court (action existing law in their interests). In other words, in the eyes of the States children remain de jure subordinate and without authority for most purposes. This paradox helps highlight how, despite the recent advancements, it is the adults, with political power and access, not the children, who identify and turn into law children’s existence, needs and authority. Adults—parents, guardians ad litem, community members, NGO representatives, lawyers—are also the main actors who take action on their behalf through legal avenues, as the first and foremost precondition for “getting a foot in the door” of the legal system is one’s legal capacity, that depends on age, as a central definitional variable.

The countries of the world overwhelmingly enshrine a general rule that individuals under the age of 18 lack the standing to approach courts by themselves and, in many cases, must rely on their parents or legal guardians to initiate proceedings on their behalf. The absence of a clear position on legal capacity as a form of emancipation may be interpreted as a blind spot in the reasoning of the UNCRC: Although it recognizes procedural rights of the child in addition to substantive rights, it remains silent on the fundamental right to an effective remedy and does not invoke directly the issues of legal standing, leaving this matter for national legislations (Daly, 2017). Whereas some countries may adopt a graduated approach, granting children some standing before the court during their adolescence, or allow the courts to grant such standing via an ad hoc decision, even in these jurisdictions the logic assigned to the different age restrictions is not fully transparent, and often internally inconsistent. This inconsistency was termed by Nolan as “artificially constructed incapacity” (Nolan, 2011).

Does “Child-Friendly” Bring More Justice to Children?

Meanwhile, within the rhetoric of international bodies of children’s rights governance there is a well-established consensus about the fact that “children’s access to justice” is the fundamental prerequisite for the realization of their rights. At the same time, international actors reflecting on, implementing or facilitating the coming of children to the various legal loci agree that children face significant barriers in their paths to approaching the law—in which lack of legal capacity is listed as one point among other factors, such as socio-cultural, material, emotional and mental obstacles.

Some optimistically argue that the conundrum of children’s access to justice can be overcome by means of rendering the justice “more sensitive”, “more friendly” and more “child-centered”, contributing to the inflation of such concepts as “child-friendly” or “child-centered” justice that proliferate in the rhetoric of international organizations and children’s rights forums (Mahmoudi et al., 2015). Whereas according to the UN these strategic targets are supposed to be achieved by 2030, it would not be an exaggeration to call children the world’s least litigious demographic (United Nations, 2015).

The Council of Europe defines as “child-friendly” the legal system that “guarantees effective implementation of all children’s rights at the highest attainable level”, emphasizing that “particular attention needs to be paid to the delivery of child-friendly information, adequate support for self-advocacy, appropriately-trained staff, design of courtrooms, clothing of judges and lawyers, sight screens, and separate waiting rooms” (Guidelines of the Committee of Ministers, 2011).

The limit of this definition is well demonstrated in Susan J. Terrio’s ethnography of children in the American immigration courts. One of the judges she spoke to (who, incidentally, granted asylum in very few cases) reported a case that “broke his heart”, involving an 11-year-old boy who had fled Haiti for the United States. Overcoming parental abandonment and abuse in a group home, he became a scholar-athlete in college. He happened to be with his older brother, a drug dealer, during a police force bust, and both were convicted of selling illegal substances. Although he had no prior record and was a stellar student, his conviction for an aggravated felony was a deportable offense. “He had a good immigration attorney”, the judge recalled, “but there was nothing I could do” (Terrio, 2015).

This decision could have been delivered by a judge without a robe, and in a relaxed atmosphere of a “child-friendly” courtroom, equipped with sight screens and waiting rooms full of toys—all these parameters, however, would not significantly alter the violence of the final decision, translating the “highest attainable level” of justice for the child, labeled as “non-citizen migrant”. Similarly, in several European countries the deportation of a family happens in several stages: first one parent, then the other, then finally the child(ren). Once the whole family is expelled, the children are deported based on their “best interests” and their “right to family life”, and in apparent accordance with Art.9 of the UNCRC, stating that “a child shall not be separated from his or her parents”.

There is no doubt that the international elaboration of “child-friendly justice” contributes to building a common aspirational horizon for further developments of justice for children and sets a universal standard for such developments within the policy-making domain. However, social scientists, including children’s rights scholars, have critiqued and warned about the immediate appropriation of concepts, developed by policymakers, into the realm of social research, as they might be inadequate for a realistic description of a given social reality (Liebel, 2007; Holzscheiter et al., 2019). And more importantly, not all operational categories of practice are useful as categories of theorization (Brubaker, 2013; Brubaker & Cooper, 2000).

To put it differently, adding the modifier “child-friendly” to our discussions of complex, and often conflictual, social processes apparent in the courtroom, is by no means a plausible way to deconstruct the existing power hierarchies underlying the court procedures. On the contrary, the uncritical recourse to “child-friendly” as a ready-made solution may provide a friendly facade to instances of social injustice that conceals and camouflages the lack of substantive rights and, as in the previous examples, the extreme violence of existing power relations. When speaking about how to render law truly more “child-friendly”, the first question to ask, perhaps, is “how often is justice the child’s friend?”

Modeling Children’s Access to Justice

If one admits that the mere mention of insufficient “child-friendliness” or “sensitiveness” lacks the theoretical productivity to adequately address children’s sinuous path to justice, how then might we examine children’s access to justice in its broadest sense, including processes accompanying justice-making with and for children?

In the conventional sociological literature, the main way to acknowledge obstacles and barriers to effective litigation is represented by the metaphoric image of the dispute pyramid (Miller & Sarat, 1980). This pyramid represents the ways to justice not positively (how does a case reach the court?), but negatively (why does it not?), and illustrates the attrition at each stage of the process from the wide variety of “unperceived injurious experiences” (the base of the pyramid) to the small percentage of claims that are actually adjudicated (its tip). Whereas this model efficiently visualizes how litigation is grounded in people’s attitudes toward law, it is also criticized for presenting a legalistic vision of justice-making that excludes informal social claiming and, as a result, misrepresents a substantial portion of the ways in which people respond to injuries and a sense of injustice more generally.

This pyramid is far from being the best to represent children’s access to justice, as the foundational plateau of unperceived experiences would be too large in relation to the claims that end up being lodged and adjudicated—and the result would not even look like a pyramid at all. Children very rarely bring their injurers to court, due to a multiplicity of factors, besides the lack of legal standing: such as cost, lack of information, cultural obstacles, fear, stigma and lack of trust in the legal system. It is important to stress, however, that a large part of children-related disputes is settled differently, outside the court system. Representing the ways of children to justice in the classical way, as a pyramid of legal action, would conceal more than it reveals of child-related justice-making.

More recently and replying to a decade-long criticism of the inconsistencies of the pyramidal model, in a widely cited article “The Dispute Tree and the Legal Forest”, Albiston, Edelman and Milligan proposed to replace the mathematically inspired metaphor of the pyramid by an organic, or botanical one, represented by the dispute tree. The tree, with some ordinary-looking branches, and some “truncated branches for injuries named and blamed but not claimed, and fruitless tips for grievances that were pursued without remedy then abandoned”, is supposed to represent “the life of the law” (Nader, 2005)—or plural approaches to dispute-resolution—in a more realistic fashion.

Extending this metaphor to the area of children’s rights and their adjudication, which kind of tree could one imagine? Is it a flowering tree that might be beautiful, but does not provide sustenance? Or is the child too rare a visitor of the “legal forest” to be able to “enjoy their flowers, eat their fruit, climb them, sit in their shade, jump from branch to branch”? These are questions that need further empirical consideration, that exceeds the scope of this chapter. However, what one can advance with confidence is that courtroom justice for children is quite a high-hanging fruit, that one is not able to reach with the help of a “ladder” (additional financial resources), but only if an adult sits them on their shoulders. In other words, so long as the branches of the children’s rights tree do not bend downward, then children, in order to efficiently enter and act upon a legal arena, are supposed to form alliances with adults, those who are their parents or complete strangers, who belong to the professional world of law. The real question is then who they are, how they are chosen, how they act—and how, and to what extent, they represent children.

Section 2

Professional Legal Representation as a Fundamental Part of Access to Justice

Socio-legal scholarship recognizes that full participation in the legal process—or the act of recognizing an injury, holding another responsible for it, and seeking a legal remedy (sometimes rephrased as “naming, blaming, and claiming” injuries (Felstiner et al., 1980), or as “justiciability of a case or a right”)—makes an individual a willful participant in governance rather than an object of government. To put it differently, in modern liberal democracies, the articulation of citizenship, legality and state governmentality implies, among other avenues, the capacity of citizens to actively seek redress for injustice, through available procedures. Although it is true that the state is authorized to enforce law and rights on its own initiative, extensive evidence indicates that the state only rarely exercises this authority, especially in civil and welfare cases, because the legal systems are structured to respond to citizen-initiated complaints.

Arguing for representation as a third necessary dimension of social justice, alongside economic redistribution and cultural recognition, Fraser defines representation as a set of processes that structure public contestation within the society—in other words, how members of the political community “air their claims and adjudicate their disputes” (Fraser, 2005, p. 75). By interrogating children’s legal representation, the abstract Arendtian concept of the “right to have rights”, inscribed in the political membership to a nation-state, can be bridged with more empirically informed dimensions of citizenship, such as political participation, legal capacity, and access to rights and social justice (Lister, 2007). Consequently, children’s pathway to justice could be traced, and theoretically framed in a much more realistic way, moving beyond the “implementation gap” (Vandenhole et al., 2015), or the “child-friendly” packaging of the existing set of laws and procedures.

It must be noted that in modern liberal democracies there is no substantiated discussion about how to render justice more “adult-friendly”, primarily because adults are viewed as universal legal subjects—even though the whole legal process appears as impenetrable for an outsider, adults and children alike. By contrast, it is widely approved that the most significant aspect of due process (for adults) is the right to independent legal counsel, and a choice among different modes of representation, as the right to be heard may be rendered meaningless without sufficient legal knowledge. This statement equally applies to children, who, as legal subjects, but especially as a politically (and economically) disadvantaged category, need independent counsel and professional representation in courts, without necessarily being fully aware of such a necessity.

One parameter too often overlooked in both international reports and academic accounts is the availability of adequate legal professionals in the field, as an essential variable defining children’s access to justice (Sandefur, 2008, 2009, 2019). In fact, these legal professionals must not only be available, but also willing to initiate and litigate a court procedure on behalf of a child, given that free legal aid for children outside the criminal justice system is guaranteed only in specific matters (Albiston & Sandefur, 2013). Children easily provoke empathy and collect financial donations, but this does not make them desirable as clients for all legal professionals. Whereas the children-oriented NGO sector proliferates worldwide, the same observation can’t be made about legal firms or independent counselors.

The legal representation of children is a complex area in both children’s rights and socio-legal studies that remains under-documented and under-researched. Whereas states keep accurate records of how many children were convicted in juvenile courts, and for which reasons, the information about how many cases were lodged by children or on behalf of them remains scarce and not easily accessible.

In this sense, the further examination of the child-attorney nexus is crucial in order to understand justice-making for children that contributes theoretically to the understanding of children’s representation in society. Lawyering-for-children is a vast, disparate and fluid professional activity that is not easy to classify. Lawyers, who represent children across ages, cases and jurisdictions, have multiple, and sometimes even conflicting, notions of justice for children, as well as the best ways to achieve it. What brings them together is that most of the lawyers systematically engaged in children’s defense would define their practice as unconventional—at least to a certain degree—this aspect being defined by the “unconventionality” of their clients, who, on the one hand, do not always have the necessary capacity to fully understand the risks and benefits at stake, and on the other hand, are in a critically disempowered position vis-à-vis the legal systems they operate within (Appell, 2007, 2005). What follows is not an attempt at a comprehensive “taxonomy”, but rather a cartography of this under-examined professional area that, however, shapes the advancement of children’s rights in a crucial way.

On the following pages, I will describe a recent case brought to the European Court of Human Rights by a Swiss lawyer, acting on behalf of a young girl from Roma community, a case that encapsulates several important aspects of lawyering-for-children, and will serve as a basis for further discussion on different approaches and modalities of children’s representation in courts of different jurisdictions—domestically and internationally.

Lăcătuş v. Switzerland: Bridging the Local to the Global

On an ordinary evening of an especially cold day, I was among the passersby hurrying back home to escape the bise—a bone-chilling wind, blowing from the Geneva Lake. At the doorsteps of one of the many small shops, marking the immigrant area, where I live, I noticed a young woman. She was sitting on the pavement, her legs tucked under her. In her hand she was holding a plastic cup, where a few coins were clinking. As I was passing by, I gave her a coin, and heard a well-recognizable refrain: “bonjour madame s’il vous plaît madame merci madame”—a few words that the members of the Roma community know of French. Once back home, from my window I could see some other people that looked new to the area: an older man with a cardboard sign was standing next to the Swiss bank, and several people were sitting at the bench of a nearby bus station. The bus arrived and left, but they went on sitting, snacking and chatting cheerfully with their children running around. The snow started falling, and something imperceptibly changed in the familiar neighborhood.

These encounters surprised me. I knew that Geneva explicitly prohibits street-begging, by means of one short and bold sentence “Celui qui aura mendié sera puni de l’amende” (Whoever begs will be punished with a fine) that can be found in A.11 of its Penal Code. How could they be here again—so present, so visible? Did they know what they were risking? But the explanation was not slow in coming: a few hours later I learned that the European Human Rights Court issued a decision, Lăcătuş v. Switzerland, leading to the invalidation of this law, and providing arguments for further decriminalization of street-begging everywhere in Europe (Lăcătuş v. Switzerland, 2020). The reconfiguration of the urban landscape, or rather its repopulation with members of a particularly marginalized community that I could observe from my window, was an immediate and quite extraordinary effect of a decision taken by a geographically remote high court.

This decision was the culmination of a career-long effort of a human rights lawyer, practicing in Geneva in favor of Roma populations, aimed at proving through legal action that the criminalization of street-begging was in direct conflict with human rights doctrine. The lawyer behind the Lăcătuş case is a paradigmatic example of a “cause lawyer” for whom bringing a grievance to the court is a moral, social and political cause broader than the immediate interests of their clients. In socio-legal scholarship “cause lawyers” is a generic term, describing legal professionals who deploy their legal skills to challenge prevailing distributions of political, social, economic, and/or legal values and resources in order to transform some aspect of the status quo in each society—or, more recently, within the international legal arena (Hilbink, 2004).

Such forms of unconventional, or unorthodox lawyering, received multiple names and designations. They are described as rebellious, progressive, transformative, radical, critical, socially conscious, alternative, political, visionary and activist lawyers. These designations describe those who apply their skills in the service of social change, social justice and equality of judicial treatment. As these causes are much broader than the immediate interests of their clients, these lawyers sometimes choose clients and cases not neutrally, but according to their own political and redistributive projects. In this, a large part of lawyers, representing children, may fall into the category of the so-called cause lawyers.

Lawyering for Children: Protection or Redress?

More broadly, one should distinguish two main approaches in children-rights advocacy and representation. The protective approach, or lawyering-for-relief, proposes individualized solutions that leave the status quo in place—by accommodating one person, or making an exception to a general rule. This approach can be defined as “humanitarian” lawyering, according to the anthropological definition of humanitarianism, perceived as the imperative “to assist fellow human beings and to alleviate suffering”, without “necessarily act[ing] to defend violated rights” (Wilson & Brown, 2009, p. 11). A paradigmatic example of “humanitarian” lawyering is the legal assistance provided by NGO workers, preparing undocumented children-migrants for interviews aimed at defining their age. Whereas the assistance of a legal professional provides immediate positive results for asylum decisions, it does not always leave space for a critique of the necessity to conduct such interviews in the first place.

Should Violeta-Sibianca, the protagonist of the Lăcătuş case—a Romanian national of Roma origin, born in a poor family and who to the present date can’t read, nor write—have met a lawyer, engaged uniquely in the “lawyering-for-relief” activity, her story would never have reached Strasbourg.

After 2007, following Romania’s admission to the European Union, Violeta-Sibianca could travel to different European cities, including Geneva. When staying in the city, she was living in extremely precarious conditions, without benefiting from any form of social aid or support, sleeping under the bridges by night and begging on the streets by day. During the daytime, she was systematically intimidated by police officers: cumulatively over three years, she received 900 CHF of fines, her meager belongings were systematically confiscated, and she was once even imprisoned for not being able to pay the forfeits.

Despite these precarious conditions, her lawyer did not seek temporary housing and financial support from the Swiss welfare system or regularization in Geneva—that was in any case almost impossible to achieve and not necessarily desired by the client—but was rather focused on Violeta-Sibianca’s primarily bread-winning activity and her humiliating interactions with the police.

In other words, the lawyer opted for a proactive approach, or lawyering-for-redress, that consisted in framing combative or innovative lawsuits challenging the prevailing institutional treatment of her clients—in this case, the explicit criminalization of street-begging. This approach includes acting upon the legal arenas to contest ill-founded accusations, obtain compensations for grievances, or making those responsible for them accountable. Lawyers opting for this approach often aim to promote change through expanding, challenging or changing substantive law, litigating matters to create new laws or push the existing boundaries of children’s rights.

Children’s Representation as a Local and Global Practice

To complexify the picture even more, one should add that the legal representation of children does not only happen within their respective legal and political systems, defined by the state boundaries, but also in the international courts following the pluralization of the legal fields involving children. Here, one could distinguish lawyers who think locally, within national boundaries, and engage in the practice of “expanding lawyering”, consisting in “paving new ways for the law to come to children”. In other words, they elaborate new and enlarge existing child-oriented legal infrastructures—avenues that bring professional legal services closer to children. This includes free legal aid offices, “legal buses”, telephone hotlines or apps, as well as the pro bono representation of disadvantaged children, or participation in professionally led movements for gratuity of all legal services for children.

The professional activity of Lăcătuş’ lawyer started exactly like this—first in her office, when she once received a client of Roma origin, assisted by a benevolent translator—but later developed in a transnational practice. Lawyers who operate at the transnational level think globally, transcending the national boundaries and aiming at supranational legal bodies. They engage in what might be called “ascending lawyering”, that may happen both nationally and internationally. This technique consists in upscaling a case in order to get decisions in courts of higher jurisdiction—in this particular case, to reach the two chambers of the Swiss Supreme Court, the negative decision of which can be challenged by a lawsuit at the European Human Rights Court.

This activity creates new legal frameworks, as law can be a mechanism both for increasing rights and for challenging laws that serve as markers of subordination and inferiority of children and contribute to the development of new legal norms—as, for example, the decisions of the EHRC are considered as parts of human rights doctrine. These legal techniques are located on different scales that move horizontally within and across national borders as well as vertically among local, national, regional and international domains. In order to make an individual story successfully “travel” through these disparate and fragmented legal channels, a significant intellectual effort of interpretation, translation and framing is necessary from the lawyer’s side.

Children’s Representation and the State: Socio-economic Rights or Civil Liberties?

The very practice of children’s representation is contingent upon conflictual discrepancies within the conception of children’s rights that are inherited from human rights doctrine. On the one hand, advocating for civic or political rights for children positions the child against the state and its coercive institutions—as it was clearly the case in Lăcătuş, or in the case of Palestinian children, accused of violence against armed soldiers, debated in Israeli courts,2 or in a recent case of a group of adolescents, accused of terrorist acts against the Russian state, committed in the space of the popular videogame Minecraft.3

On the other hand, lawyers, targeting the welfare, or socio-economic rights, implying more protection coming from the state institutions—as for example, advocating for unconditional admission of undocumented migrant youth in state-subsidized shelters—tend to (or must follow strategically), dominant norms of child welfare in each society, in a manner consistent with the societal demands. As Boon has noted, “the lawyer in a liberal state ostensibly pursues the same ends as the state itself.… But lawyers hold the state to its promises” (Boon, 2001, p. 153). Ending this phrase by “without asking for more” would not be inconsistent. In a similar vein, Nolan makes an explicit argument against the courts as spaces of contestation of socio-economic rights for disadvantaged children, arguing that the judicial system is too partial to attack the broad and deep origins of poverty, and despite individual successes in the courtroom, the underlying problem will remain largely unmediated and unaddressed (Nolan, 2011).

Over several years of tight legal battles with the Swiss system, Lăcătuş’ lawyer developed a sophisticated argumentation in the spirit of the European Convention on Human Rights that de facto prioritizes civic and political rights of peoples over their social, economic and cultural rights. According to this framework, her lawsuit presented the act of collecting money in public places as part of the right to respect for private and family life, freedom of expression and non-discrimination, alleging, inter alia, that Lăcătuş had been the victim of discrimination on account of her social and financial situation and her origins. Whereas the Supreme Court of Switzerland rejected all these allegations in block, the European Court of Human Rights ruled unanimously in favor of the case, admitting that the facts infringed the applicant’s “right for private and family life”, encompassing the right for human dignity and the right to seek relief in a situation of distress. The decision mentioned explicitly that the rights of the applicant were infringed on the grounds of A.11 of the Geneva Penal Code, which led to the subsequent abrogation of the article, and simultaneously opened new avenues to destigmatize everyday activities of street children and challenge their intimidation by the police, at least in European countries. It should be noted that the initial sum of 16.75 CHF confiscated by the police was restituted to Lăcătuş after more than ten years, and she received 900 CHF as compensation for moral damage.

Replying to the Court’s argumentation in Lăcătuş, the Swiss Government invoked such reasons for the prohibition of street-begging as public order and safety, the economic well-being of the country and the protection of the rights and freedoms of others, as those who beg in public harass passers-by, bother restaurant patrons and dissuade shoppers, and incite violent reactions from those they inconvenience. It also invoked the potential harm to the tourist attractiveness of the city of Geneva. The Government submitted that this law exists primarily for reasons of protection, as those who beg are commonly exploited by criminal enterprises, especially where children are concerned. Additionally, the Government mentioned that Lăcătuş had never addressed Swiss social services to seek a solution to her situation. As for the “freedom of expression” (of distress), invoked by the lawyer, the Government mentioned that Lăcătuş, when begging, never tried to speak up about the condition of the Roma population, nor made any specific political argument toward the Geneva community.

Overall, the efforts of the state were aimed at the reconceptualization of the case as an individual, domestic and narrowly economic issue—whereas the effort of the lawyer, sustained by the Court, was presenting, or rather “translating”, it in the human rights language, as a collective civic and political case of transnational significance for Roma community that includes, but is not limited to, children and youth involved in street-begging.

In the case of Lăcătuş v. Switzerland, despite its undoubtedly progressive nature in terms of recognition of rights of children and disadvantaged minorities, the argument of EHRC followed the lawyer’s translation of Lăcătuş’ grievances for police ill-treatment as a violation of her right for “private and family life” (Art.8), a right sufficiently vast to encompass “human dignity”. A concurrent opinion of one of the judges interpreted her activities as the “right to express distress”, perceived as a derivative of the freedom of expression, and another one again indicated that it was not a case of “human dignity”, but that of a “human autonomy”.

This decision disregarded, however, such important aspects of informal economic activities, elaborated by children’s rights scholars, as the right to work in decent conditions, freedom of entrepreneurship, or even, arguably, cultural rights, leaving them outside of the legal debate. Additionally, the Court did not make any statement regarding the racial discrimination of Roma minorities. While interviewing the lawyer behind this case, I realized that all these dimensions were of equal importance to her; however, “they never passed through”, as she framed it—or, in other words, they were never picked up by the Court in her attempts to advocate for this. This positioning results from an artificially constructed dichotomy that opposes civil and political rights on the one hand, and socio-economic and cultural rights on the other hand, which in the current configuration of international justice cannot be addressed and debated together.

Lawyering for Children as Interpretation, Translation and Transmission

Here, the lawyer acted as a translator, who connected transnationally circulating discourses to particular socio-legal contexts and adapted international documents into terms relevant to localized political struggles, enabling injured individuals to see the human rights violations against them. These processes of “translation”, “transformation” and “interpretation” between everyday reality and the legal categories are already present in legal work—and, more philosophically, legal reasoning. In her seminal theorization of global and local processes in law, explained through a linguistic metaphor of “vernacularization”, legal anthropologist Sally Engle Merry emphasized that a key dimension of human rights, perceived as a transnational field of practice, is the work of intermediaries—“the people in the middle”—who translate between abstract human rights concepts and specific situations (Merry, 2006).

Such intermediaries take stories of particular injuries and translate them into human rights violations so that global audiences will pay attention. Particular experiences are translated into the more generic terms of human rights violations so that they can circulate along transnational corridors. As Lăcătuş’ success demonstrates, what once were tragedies, or failed cases in the eyes of the judges and civil society, are now also potentially violations of international law. The everyday grievances of children, documented by NGOs, may also constitute evidence of such violations that may be presented to international bodies (Hanson & Nieuwenhuys, 2012).

With the pluralization of legal regimes, representing a shift from the centrality of the state as the source of legal ordering, the legal work came to signify not only the reformulation of children’s grievances in legal terms, but also the interpretation thereof within the frameworks of rights, associated with the functioning of supranational courts, and the transnational legality more generally. Within this new pluralization of law and heightened contest between local and global orders, state sovereignty emerges as an increasingly complex phenomenon, constrained by multilateral treaties and engagements (Fraser 2005).

Considering the above, one can delineate three modes of professional representation of children, based on the premises of lawyer-client interaction, that are not mutually exclusive, and may complement one another, stretching from the most conventional formats to the most unconventional ones, and apply to both international and domestic aspects of representation:

  • Lawyering on behalf (or in lieu) of the child, when the legal representative defines the child’s best interests, and develops the strategy according to her knowledge, experience and expertise in the field.

  • Lawyering for the child, aiming at improving the conditions, protecting rights and solving problems, following the interests expressed by the child, that may not necessarily coincide with the lawyer’s personal views.

  • Lawyering for the children—as parts of marginalized communities, or as a group, that includes proactive litigation in national and international courts, and legal advancements, aimed at the development of children’s rights law.

Ultimately, Lăcătuş v. Switzerland is an interesting example that synthetizes all three modes of representation and demonstrates how a lawyer, by writing down the story of an illiterate girl, actioned it at the international level to abrogate a law that both—the lawyer and the client—found discriminatory and unjust, however for different reasons. To my question about the meaning of the case for Lăcătuş herself, her lawyer replied: “For this applicant the decision was meaningful. Firstly, it meant less police harassment on the streets. Secondly, and most importantly, the meaning stemmed from her feelings of gratitude towards me, as I represented her community for over a decade. She knew that the decision was important for me, and therefore it was for her”. And while in this case the decision did have a tangible effect on their everyday lives (i.e., the repealing of the law immediately provided access to previously restricted areas), the average Roma individual does not perceive international legal action, and the EHRC, as a reliable source of justice-making for the community. Indeed, it is evident that social suffering is never immediately alleviated by these victories, due to structural inequalities, and most importantly the disjointed temporalities of the law and everyday life. Nor do these decisions provide immediate political solutions, as their rhetoric has first to be picked up and utilized as arguments in political struggles by those who have a more direct access to polity.

Epistemological Challenges of Power Delegation in Courts

Whereas the Lăcătuş case is illustrative of an interesting form of intergenerational and trans-class solidarity between a socially sensitive legal professional and her disadvantaged client, it should be noted that all complex transnational processes that involve children only at the very first stages of the legal action do not come without significant challenges. Such challenges are associated with any form of representation, as the privileged access to legal knowledge per se places lawyers in a heightened position of dominance vis-à-vis their clients. This epistemological inequality, that in critical legal studies is sometimes defined as “epistemological imperialism”—the power to define which grievance may potentially become justiciable and how, or “legal extractivism”, the power to access to and use someone’s distress for a reason—is perhaps even more palpable in the courtroom, where those with legal education play the role of experts, and others the roles of complete outsiders (Madhloom & McFaul, 2021).

As experts, lawyers may construct their own notion of substantive justice and fail to search for the child’s view. They may also lack information or imagination of how those rights will affect the client and children more generally. The attorney has relatively free reign to identify and shape the child’s interests and little accountability when acting within this relationship. As Mnookin noted, rightly, “wherever power is delegated, there is always the potential and incentive for the agent to put his own interests ahead of those of his client. The problems infect almost every human relationship” (Mnookin, cited in Minow, 1990). The first and foremost risk, jeopardizing adequate representation of children in courts, is a marked tendency of individual adults, groups of advocates, and even the state institutions, to treat children as vessels for various sets of privately and publicly held values that children are not fully aware of. Sometimes, this leads to symbolic “usurpation” of a child’s agency in a particular legal or political situation, when the child’s voice, identity, grievances or political opinions serve solely to promote the cause, formulated by the attorneys “over the heads” of their clients—however noble this cause might be.

Whereas in European scholarship the notion of lawyering “in the best interest of the child” became hegemonic, contingent to the view expressed in the UNCRC (Freeman, 2006), in the American context scholars have argued about whether lawyers should advocate for the “best interests” or rather for the “expressed interests” of their clients, who are children. The doctrine of the “expressed interests” has been largely advanced by the progressive and advocacy-oriented members of the bar, who criticized the “best interest approach” firstly for ethical reasons, as it allocates too much of the decision-making power to the attorney, and secondly for theoretical ones, since the notion of the “best interest” when it comes to the client-attorney relationship is based on a legal fiction that may overshadow the legally codified spectrum of rights, and the client’s wishes (Artwood, 2008). Some commentators even propose to convey an independent advocate to articulate the child’s “best interests” position, leaving to the attorney the representation of what the child wants, despite the possible inconsistencies in the child’s reasoning.

Conclusions: Toward a Mutually Significant Alliance?

The child imagines the law not as a written doctrine, but as a chain (network) of objects and persons, who impersonate power or mediate knowledge; the legal personhood of a child is constructed by interaction with these elements, constituting their cultural repertoire. The sound of the police siren that suspends the flow of time on the street, “you are under arrest!”, the cuffs, but also random representations of legal process provided by popular culture, the officially stamped documents, or lack thereof, experienced by both the child and her relatives—the encounters with these disparate elements push children to reflect on, and position themselves in relation to such abstract concepts as “order” and “disorder”, “justice”, and “injustice”, and the dialectical relationship between them. This is how the legal landscape emerges in the child’s consciousness—and it can be either menacing or meaningful, or even captivating for some.

For legal anthropologists, law manifests itself not only as a material ensemble of codified norms and statutes, validated by a set of linguistic and social practices, but as a cognitive and semiotic construction mediated by immediate experiences: it is not something that happens outside the society, but within people’s lives. Indeed, as Silbey puts it, law is deeply entrenched within the “tapestry of the everyday and ordinary events”. Long before the codification of their rights, children had legal lives (Hanson & Nieuwenhuys, 2012). They had to, and still have to, navigate complex legal worlds with or without external guidance. From this viewpoint, disadvantaged children, who are often described as totally estranged from the legal sphere, may have in practice a more precocious and intimate relationship with the legal system than their more privileged counterparts (Balagopalan, 2019, 2014). Mostly illiterate Roma children, engaged in informal activities in the streets, are better informed about the everyday practices of law-enforcement than most legal professionals.

These interactions are also one of the first places where a child encounters the notion of social power and engages with legal and political authority. This power may be quite abstract, but it is substantially linked to such ideological and cognitive constructions as “the state”, “bureaucracy” and finally “the law”. The legal consciousness of an adult does not emerge magically when she turns 18, but is acquired gradually, as part of an individual’s cultural repertoire and is shaped by various experiences, be they positive, negative or ambivalent.

Notwithstanding all these risks and perils, the experience of invoking the law, while being assisted by a competent legal professional, plays an important, formative role in the way children perceive justice and authority. As shown above, a courtroom success does not necessarily mean social justice; conversely, a courtroom failure does not necessarily mean alienation and desperation. For children, legal experiences may play an emancipatory role, as it decenters and challenges the unidirectional model of the law (from state to citizen), delineating legal processes as merely top-down mechanisms for social control, that cannot be challenged from the bottom upward. An exercise in legal reasoning challenging dominant discursive, epistemological and political norms may, under certain conditions, bring evidence about the potential reversibility of the processes of domination and exclusion, and demonstrate a more interactive (rather than subordinate) approach to the law.

In this sense, the experience of legal representation can be perceived as a mutually significant exchange between a child and her legal representative—a form of alternative legal pedagogy—that opens a window toward more legal literacy, and finally leads to a deeper understanding of democratic processes, such as plurality, adversariality and, more importantly, the possibility, and even necessity, to appeal the decisions taken without due consultation—including that of inadequate representation. The three formats of legal representation outlined in this chapter—lawyering on behalf (in lieu) of the child, that leaves the courtroom agenda to the discretion of the attorney; lawyering for the child, that follows the interests, views and opinions, expressed by the child; and lawyering for the children, aimed at achieving social justice for children as a social group—may be counterbalanced by a fourth—lawyering with the child, a practice based on the premise that every child is competent, capable of autonomy and needs more legal information, unless the contrary is proven. Whereas such conscious collaboration is desirable, it appears almost utopian, or at least exceptional at this juncture, as it does not realistically represent the structural premises of the professional legal field and its rigorous hierarchies of power, that are based on, among other things, epistemological privilege of access to legal knowledge.

Notes

  1. 1.

    Children’s tribunal of Repubblica dei ragazzi de Civitavecchia around 1948, in Boussion, Gardet and Ruchat (2020, p. 77). Photographic albums of Carroll-Abbing, archives of l’Istituto internazionale per lo studio dei problemi della gioventù contemporanea, Città dei ragazzi, Rome.

  2. 2.

    https://www.dci-palestine.org/military_detention.

  3. 3.

    https://www.themoscowtimes.com/2020/11/23/siberian-schoolkids-charged-with-terror-over-minecraft-plot-reports-a72120.