18 Refugee Law Initiative Working Paper 76 exactly how these good intentions manifest in litigation remains in question. This is especially true when the litigant is a child too young to be heard in the traditional sense, reliant upon an adult representative to be their voice. As noted by Bilson & White, there is “international consensus” that “children need representation.” 113 Of course, being heard and being represented are two distinct concepts. A child “being heard” in litigation “should be empowering and sustained” without any kind of “tokenistic approach.”114 This quote directly addresses the fears of Donger that litigators may be “instrumentalizing and tokenizing” children;115 however, questions surround how this genuine participation looks in practice. Very few attorneys and judges receive training on how litigators and courts should proceed in an age-appropriate manner specific to each child.116 On one hand, under the CRC, any child who can reason and express views “has to be, not might be, but has to be heard” personally and not through an adult.117 On the other hand, “what are the questions we need to ask in order to determine” a child’s ability to steer through litigation – “what is the cutoff point?”118 The experts noted, as also set forth in Section 2.1.2, this decision making happens against the backdrop of the child’s best interests as mandated by CRC Article 3, EU Charter Article 24(2), ECHR Article 8, and the ICCPR. Taking into consideration that 42 percent of negative cases and 33 percent of positive cases of this sample presented child litigants under the age of 5, the involvement in these litigation decisions clearly did not come from the children themselves. Many children are born into statelessness and then grow into a place where they may enjoy a genuine right to be heard, but before that time the state must confirm someone is protecting the rights and best interests of the child.119 It is necessary to recall the CRC Committee’s observation that these “very young children have the same rights as all children…even if they cannot express their views”, yet the problem appears to remain in finding the means and methods necessary to accomplish respect for this principle.120 Experts identified dedicated guardians or special representatives as a necessary yet oftentimes missing response to this problem.121 CRC Article 3 obliges states to guarantee all those involved in litigation prioritize children’s bests interests and the right to be heard. How a state may – or may not – provide this protection for stateless children varies with each jurisdiction. Adopting the experts’ presumption that a dedicated representative enables children’s voices to be heard, this paper attempted to recognize correlations between the existence of special representatives and the outcome. “Special representative” for the purposes of this paper is broadly interpreted and used interchangeably with “guardian”; in sum, representatives dedicated solely to an individual’s child’s best interests legally and/or socially. 4.2.1 Concerns Encountered in Practice One obstacle in finding connections between the lack of a special representative and a negative outcome, is that most of the court decisions in this sample are at an appellate level. It is unknown exactly what transpired at first instance or at the outset of the litigation process. In an appeal or request for judicial review, typically a court reviews only questions of law, not fact, and it is common for the child at issue to be physically distant from the proceedings. A special representative arguably is most needed when a child first enters into litigation. Despite this reality, if a state has ratified the CRC and incorporated it into its law, then unsuccessful litigants at first instance “absolutely can base an appeal on Article 12” if a child’s right to be heard was disregarded in those original proceedings.122 Thus, if children’s lack of a guardian or the conflicted nature or incompetence of an existing guardian violated their CRC Article 12 right to be heard and resulted in a negative outcome, they may argue that point on appeal. 113 Text to n 34. 114 Executive B (n 72). 115 Donger (n 12) 285. 116 Executive A (n 70). 117 CRC Chair (n 73). 118 Executive A (n 70). 119 ibid. 120 CRC Committee (n 40) para 44. 121 CRC Chair (n 73); Executive A (n 70); Barrister (n 70). 122 CRC Chair (n 73).