The Role of Guardians in Ensuring Children’s Right to be Heard

[Laura Duchamp is a Legal Researcher at the International Commission of Jurists]

Children are not merely subjects of protection but rights-holders, entitled to exercise their human rights within fair proceedings. Due to their age and evolving capacities, children need enhanced support to effectively enjoy those rights.

The adoption of the United Nations Convention on the Rights of the Child (CRC) in 1989 marked a significant step by explicitly recognizing children as individual rights-holders. The CRC’s four guiding principles are: non-discrimination and equality (CRC, Art. 2); the best interests of the child (CRC, Art. 3); survival and development (CRC, Art. 6); and the views of the child (CRC, Art. 12). Assessing a child’s best interests demands respect for their right to express their views freely. With respect to this, due weight must be given to those views in all matters affecting them (CRC, Art. 12). Decision-making should therefore be grounded in a careful, case-by-case assessment of all elements relevant to the child’s interests, including their views, identity, family environment and maintaining relations, care, protection and safety, situation of vulnerability, health and education, as set out by the Committee on the Rights of the Child (CRC Committee) in General Comment No. 14.

Yet, in many instances in the context of civil, administrative or criminal proceedings affecting them, children are not adequately heard, especially those with specific needs or vulnerabilities, such as children with disabilities or hailing from minority or migrant backgrounds. Legal proceedings are frequently neither accessible nor child-appropriate, compounding the difficulties children face in having their views heard.

Human Rights Concerns in Accessing Guardianship

Access to guardianship is among the most critical procedural safeguards for children’s effective participation in legal proceedings. However, the implementation of a guardianship system varies widely across jurisdictions. Many national legal frameworks do not guarantee effective access to either legal guardianship or guardianship ad litem, nor do theyclearly define these roles. Where the specific situation and needs of the child require such access, its absence denies the child justice and the right to fair proceedings.

One core issue lies in the inconsistent use of terminology across jurisdictions. Terms like “guardian”, “legal representative”, “guardian ad litem”, and “lawyer” are used interchangeably, despite their distinct roles. While guardians can be lawyers, their function differs from that of qualified legal professionals providing legal assistance to a child in the context of judicial proceedings.

Legal Guardianship

According to the European Union Agency for Fundamental Rights (FRA), a legal guardian should be appointed in all cases where a child is deprived of their parental environment or where remaining in that environment is not in the child’s best interests, regardless of whether a guardian ad litem is also appointed. The legal guardian’s responsibility is to represent the best interests of a child with limited legal capacity under national law, as a parent would.

The role of legal guardians should not be limited to legal representation alone; legal guardians must also have competence in child protection, so as to seek to safeguard the child’s overall well-being.

A key illustration of legal guardianship systems is in asylum and migration-related proceedings, where the appointment of a legal guardian is essential to the effective protection of unaccompanied or separated children, who may otherwise face serious risks of being subjected to human rights violations. The European Committee of Social Rights (ECSR) recognized the role of legal guardians in the ICJ and ECRE v. Greece case, emphasizing the importance of appointing them as soon as children are identified as unaccompanied or separated.

Several legislative instruments under the EU Pact on Migration and Asylum (EU Pact) introduce new safeguards for separated or unaccompanied children applying for international protection and residence permits, including provisions for legal guardianship. The legal guardian’s responsibilities include:

• Reception Conditions Directive: The legal guardian meets the child, takes into account their views, represents them during age assessment, and is informed of relevant facts (Art. 27). The legal guardian is present when Member States provide reception condition information to the child (Art. 5) and may provide statements on special reception needs (Art. 25).
• Screening Regulation: The legal guardian accompanies and assists the child during screening in a child-friendly, age-appropriate manner, and safeguards their best interests and general well-being (Art. 13). The legal guardian is involved when Member States provide information during screening (Art. 11).
• Asylum and Migration Management Regulation: The legal guardian may request information regarding the progress of the procedure for determining the Member State responsible (Art. 19), is present during information provision (Art. 20) and personal interviews (Art. 22). For procedures determining the Member State responsible, as well as for transfers and relocation procedures, the legal guardian accesses the child’s file, keeps the child informed, assists in the procedures, represents the child during age assessment, and supports the best interests assessment (Art. 23). The legal guardian may provide information to the Member State where the unaccompanied minor is present (Art. 23) and may consent to health data transmission from the transferring Member State (Art. 50).
• Asylum Procedure Regulation: The legal guardian represents and assists the child throughout the asylum procedure by meeting the child, taking their views into account, providing relevant information, assisting with age assessment, assisting with lodging applications, and assisting the child for the interviews (Art. 8, 23, and 33). The legal guardian may identify special procedural needs (Art. 20), may ask questions during interviews (Art. 23), may consent to medical examinations (Art. 24), and is notified of decisions (Art. 8, 36).
• Qualification Regulation: The legal guardian ensures access to rights to the child, represents the child within proceedings concerned with withdrawal of refugee or subsidiary protection status, and assists family tracing (Art. 33).

For each procedure, the child has the same legal guardian until the end of the procedure, ensuring continuity and building the child’s trust. Additionally, the EU Pact provides that the legal representative may be the same person as the one assigned for other procedures.

However, under the EU Pact, Member States are required to appoint a provisional representative—prior to the appointment of a legal guardian—within 15 working days of an asylum application by an unaccompanied child, with an exceptional 10-day extension. Although the EU Pact provides that no decision affecting a child should be taken without a legal guardian in place, in fact the child may not have a legal guardian for up to 25 days from their having applied for asylum. During this period, the absence of a trusted legal guardian can leave children particularly vulnerable during the crucial stages of screening, identification and age assessment.

The EU Pact provides that each legal guardian may not represent more than 30 children. While this figure is intended to ensure a caseload limit, the figure of 30 may be higher than previous limits or practices. As a result, Member States could now impose this threshold on legal guardians without considering the specificities of their national legal guardianship system (e.g., volunteers) or the complexity of certain individual cases.

The EU Pact requires legal guardians to have “the necessary qualifications, training, and expertise” (Asylum Procedure Regulation, Art. 23(9); Asylum and Migration Management Regulation, Art. 23(5)). However, these specific requirements remain subject to national interpretation and may give rise to widely varying expectations depending on the discretion of Member States.

The new EU Pact also mandates that Member States establish monitoring mechanisms for legal guardianship, which will be overseen by the European Union Agency for Asylum (EUAA). The effectiveness of these mechanisms in practice remains to be seen. As the EU Pact’s implementation began on 12 June 2026, Member States will need to ensure compliance with international human rights law and standards, and careful scrutiny and monitoring at the national level will be essential.

Guardianship Ad Litem

Guardians ad litem are appointed to represent children in specific proceedings in cases of conflict of interests with a parent or legal guardian, ensuring that children have an independent voice.

Guardian ad litem systems are most often relevant in custody, care and child protection proceedings, where parental and care arrangements can be complex, contested, or harmful. With respect to these proceedings, where children need representation the most, concern arises where the appointment of guardians ad litem is not mandatory, as for example in the Netherlands and Malta.

While international standards require guardians ad litem to represent the child’s views in proceedings, their role remains ambiguous pursuant to several domestic legal frameworks. In the Czech Republic, for example, it is unclear whether their task is to represent the child’s best interests, as perceived by the guardian ad litem, to convey the child’s own views, including their interests as perceived by the child, or to do both. In B.J. and P.J. v. the Czech Republic, the CRC Committee found that if the views of the guardian ad litem appear to conflict with the child’s views, national authorities should appoint separate representation for the child to ensure their views are adequately expressed during the proceedings.

Structural conflicts of interest and a lack of independent representation also raise concern, for example, in Slovakia, where the same public authority that initiates child protection procedures may also act as the child’s guardian ad litem. This creates a risk that the child’s views will not be represented independently in fair proceedings.

Limited interaction between guardians ad litem and children is another reported concern in the Netherlands and Slovakia. Without sufficient engagement, children may not trust their guardian ad litem enough to share their views, and guardians ad litem may be unable to identify the child’s needs and vulnerabilities. Additionally, shortages of guardians ad litem with specialized expertise in children’s rights have been reported in Malta.

Effective Remedies for Violations of the Child’s Right to Be Heard

Dependence on adults, vulnerability, and evolving capacities give children a special status, which makes it more difficult for them to access remedies for violations of their rights (CRC Committee’s General Comments No. 5 and No. 12). Some of the identified obstacles preventing children from having violations of their rights recognized and redressed stem from gaps in child protection systems and the limited avenues available to them, including: i) the limited legal capacity of children under national law, which makes remedies dependent on the goodwill of their guardian (in some jurisdictions, children cannot even request a change of guardian themselves); ii) poor communication between children and their guardian regarding their own claims or the possibility of challenging legal decisions; iii) the intimidation children may feel when complaining about an adult, including their guardian; and iv) the complexity and length of complaints procedures, which make them practically inaccessible to children.

According to international law, children must have access to effective, child-sensitive appeals and complaint procedures that provide remedies for breaches of their right to be heard and participate in legal proceedings. National legal frameworks should provide accessible avenues for children to file complaints about their guardians if they feel not being listened to or dissatisfied with the way their guardians treat them. With respect to this, for instance, the Constitutional Court of the Czech Republic ruled that a child’s right to appeal cannot be restricted by their appointed guardian ad litem.

To provide effective remedies for breaches of children’s rights, the CRC Committee encourages States to establish independent National Human Rights Institutions (NHRIs) with the power to consider individual complaints and petitions submitted directly or on behalf of children, and to carry out investigations (General comment No. 2). One way of strengthening access to effective remedies is to have procedures allowing children to bring individual rights-based complaints through a children’s Ombudsperson. This is currently the case in two-thirds of EU Member States.

Promising Practices and Recommendations for Right-Based Guardianship Systems

The challenges children face in legal proceedings are both numerous and deeply rooted, often stemming from systemic gaps in the implementation of international human rights law and standards. Addressing these gaps requires innovative approaches tailored to children’s specific needs. Good practices have emerged in a number of jurisdictions through improvements to their guardianship systems in laws and practices.

Both professional legal guardians and guardians ad litem involved in legal proceedings concerning children should receive mandatory, continuous, and specialized training. They must be equipped with specialized skills and knowledge to navigate the complexities posed by those proceedings effectively. In Austria, for example, courts appoint a guardian ad litem (Kinderbeistand) specifically trained to work with children up to age 14, or 16 in exceptional cases. The Kinderbeistand informs, supports, and conveys the child’s views in custody, care, and child protection proceedings. The Austrian Ombudsoffice for Children and Youth (Kinder- und Jugendanwaltschaft) has launched a pilot project to extend this model to all asylum cases concerning children.

Multidisciplinary approaches prioritize collaboration among guardians and other professionals, such as judges, social workers, psychologists, educators, medical professionals and public authorities, who are involved in legal proceedings concerning children. Such collaboration supports a more holistic understanding of the child’s needs and circumstances. Both Barnahus and Cochem models represent leading examples of a multidisciplinary approach.

Additionally, guardians should help empower children in legal proceedings. In Slovakia, a notable practice prioritizes the appointment of a trusted legal guardian in custody, care, and child protection proceedings—someone the child already knows and with whom they feel comfortable sharing their views. This approach ensures that children can express their preferences regarding who should represent them. Empowering children could also involve supporting direct communication between them and decision-makers, such as judges, where appropriate. This can amplify their voices and ensure their perspectives are meaningfully considered in the outcomes that affect them.

Finally, systematic data collection on children’s participation in legal proceedings can inform evidence-based policy and practice. For example, in the Netherlands, young people are invited to share feedback on their experience with Nidos, the independent organization providing legal guardianship to unaccompanied children, at the conclusion of their guardianship period.

In the recent Compendium published by the International Commission of Jurists (ICJ), Ensuring the child’s right to be heard and to participate in legal proceedings: Strategies and good practices, the ICJ has compiled information, experiences, and strategies from practitioners and experts across different legal fields, as well as from policymakers and civil society actors engaged in legal proceedings where children’s rights are at stake.

Photo by Ben Wicks on Unsplash