Childhood Statelessness i European Courts: An Avoidable Crisis 4.2.2 21 Family Courts: A Model In the context of family courts, guardians are provided to children on a reliable basis in many European jurisdictions.146 Several experts noted that the “most developed thinking” and meaningful procedural guidance with respect to child rights is generally found in family law.147 In domestic family proceedings, a court appointed guardian is often mandatory, while many international forums and other courts (such as immigration/asylum tribunals) are unaccustomed to guardians and no framework exists to provide similar protection.148 One such framework can be found in The Family Justice System of England and Wales and its Children and Family Court Advisory and Support Service (Cafcass). Qualified social workers work with children involved in litigation and then advise the court about their welfare and best interests.149 This service is not found in UK asylum, immigration or statelessness application procedures, which are regulated by a different set of rules. Similar approaches persist throughout Europe.150 Reasons underlying the differences between courts are multifaceted, including the expensive nature of guardianship and potential discriminatory treatment of foreigners as opposed to children who are citizens.151 Without procedural guidance, an attorney may negotiate with the parent to bring someone such as an NGO or expert into the litigation to protect the child’s interests.152 In the end, if it is discovered a child has not been heard, then that decision should be overturned: “That is the answer. If the child should be heard and is not heard, the decision concerning the child is void.”153 Whether or not something akin to a Cafcass professional would have made a difference in a negative case such as E3, N3 and ZA v. Secretary of State for the Home Department discussed in Section 4.1.1,154 appears questionable. As stated above, appeals focus on questions of law and often are intellectually crafted by attorneys. The judge in E3 noted his appreciation of the high-quality legal representation in this particular case, which included the private attorneys for the claimants.155 Under these circumstances of appeals, perhaps litigants cannot hope for much better than excellent attorneys in their corner. On the other hand, the E3 judge acknowledged that the innocent child left without British citizenship due to UK government error was a victim, which makes one wonder what more could have been done to prevent this outcome.156 Notably, there were three litigants in this case: the child, the father, and a similarly-situated man, and the child did not appear to have her own dedicated attorney. Taking all of this into consideration, if separate legal representation or a dedicated guardian was not offered when this child first entered into litigation, perhaps it should have been. One expert painted a first-hand picture of the differences between an immigration tribunal and a family court. Without genuine guidance, a mother applied for asylum with her child as dependent, without an application in the child’s own capacity. The immigration tribunal ruled against the mother, mistaking her procedural misunderstandings for untruthfulness, and barely mentioning the child in its decision. The child was not an actual party to the case, yet the immigration tribunal ruled against the child as well. A proactive state department of education, concerned with the child’s mental health, obtained expert advice about the child’s situation and brought the case before the jurisdiction’s family court. The mother received a litigation friend/protector and the child received a special counsel appointment, and the mother and child 146 Bilson & White (n 35). 147 Executive A (n 70). 148 Executive B (n 72); Rap (n 27). 149 2025. Cafcass, ‘How Cafcass can help you’ (2024) <https://www.cafcass.gov.uk/about-us/how-cafcass-can-help-you> accessed 11 March 150 See, e.g., Anna Kaldal, ‘Children’s Participation in Legal Proceedings – Conditioned by Adult Views of Children’s Capacity and Credibility?’ in Rebecca Adami, Anna Kaldal, Margareta Aspán (eds), The Rights of the Child (Brill/Martinus Nijhoff 2023); Cathy Donnelly, ‘Reflections of a Guardian Ad Litem on the Participation of Looked-after Children in Public Law Proceedings’ (2010) 16 Child Care in Practice: Northern Ireland Journal of Multi-Disciplinary Child Care Practice 181; Maria Ruegger, ‘Seen and Heard but How Well Informed? Children’s Perceptions of the Guardian ad Litem Service’ (2001) 15 Children & Society 133. 151 Executive A (n 70); Barrister (n 70). 152 Executive B (n 72). 153 CRC Chair (n 73). 154 E3 (n 82). 155 ibid, para 3. 156 ibid, para 92.