Childhood Statelessness i European Courts: An Avoidable Crisis 19 All of Europe has ratified the CRC – although whether states have implemented it is an issue discussed in Section 4.3 – therefore it was unexpected to find that only in two of the 44 cases in this sample a court addressed a child’s right to be heard.123 The fact those two cases emerged from the ECtHR and CRC was perhaps not as unexpected. At the same time, the one case that presented a litigant challenging (unsuccessfully) a lack of guardianship for a stateless unaccompanied minor in the context of refugee status was the same ECtHR case that contributed to discussion concerning the right to be heard. Notably, in that case the ECtHR held it did not have to rule on the guardianship issue, so there was no genuine guidance on the matter.124 Unfortunately, these low statistics do not stem from every child being heard in a CRC Article 12 sense in all cases, or every child being appointed a special representative to protect his/her rights and best interests throughout the litigation. “This is a problem we constantly see. Even though this is the 35th anniversary of the CRC, the mindset hasn’t changed that children remain passive subjects of protection rather than right holders in their own right.”125 In some states outside of this sample, children’s voices are not heard because children are considered the property of their parents.126 Europe may not encompass those states, but even in European states that support a child’s right to be heard, if a child is from a family that places similar beliefs ahead of a child’s rights, it may not be possible for that child’s voice to be expressed, even in a European jurisdiction.127 In these situations, the concern is not only with small children, but also older children capable of expressing their views. Several problems might arise if children are not asked questions or not allowed to answer freely. For example, if a child has a sexual orientation that parents disagree with, or there is violence within the family, those serious issues likely will never be admitted and the child will not receive protection.128 Where such differences exist and are discovered between the interests of the child and the family, “then a guardian ad litem must be given to the child.”129 Children must have a representative acting on their behalf when their best interests do not align with their family – the child should be at the center of all considerations.130 Children not only need a representative to insist their voices to be heard, but also to help them navigate procedure. One expert found judges often consider teenagers to have understood their instructions when in fact the trauma they have endured and their lack of legal knowledge stands in the way of genuine instruction.131 Minors need guidance through the process, support going to interviews with psychiatrists, and assistance constructing their case chronologically – “guardians are much better at this than most lawyers.”132 These guardians may also ensure that everyone speaks in a language the child understands, and that no one is asking open-ended questions or questions children of a certain age cannot understand.133 Without this special representative, procedure is inexplicable to most children who do not understand where they fit into the system, why they are meeting certain individuals, or what they have to accomplish.134 It thus appears clear that children need a special representative, yet also appears through this sample and interviews that such representation is often lacking in the context of childhood statelessness, and most immigration contexts. It is not possible to understand the lengths the existing advocates went for their clients in this sample. In one negative case coming from the Court of the Hague, for example, the child applicant was the sole litigant with an attorney acting specifically on his behalf (the existence of an additional guardian is unknown), and the types of action that attorney took beyond legal arguments and procedure cannot be gathered 123 A.J. v. Greece App no 34298/18 (ECtHR, 26 April 2022); A.M. (on behalf of M.K.A.H.) v. Switzerland (2021) CRC/C/88/D/95/2019. 124 A.J. v. Greece (n 123). 125 Executive B (n 72). 126 CRC Chair (n 73). 127 Executive B (n 72). 128 Executive A (n 70). 129 CRC Chair (n 73). 130 Executive A (n 70). 131 Barrister (n 70). 132 ibid. 133 CRC Chair (n 73). 134 Barrister (n 70).