We have all heard that minors do not have full legal capacity and, therefore, require the assistance of adults.
However, what happens when in a trial where the rights of a minor are being settled, his or her representative does not participate in his or her defense, can the child act in his or her own right, should a new one be appointed, should the child’s spokesperson be forced to act?
Although it may seem hard to believe, in practice this type of circumstances are very common and, therefore, the First Chamber of the Supreme Court of Justice of the Nation (SCJN) has issued a pronouncement on the matter, which has its origin in the isolated thesis number 1a. XXXVI/2022 (10a.), published under the heading “REPRESENTACIÓN JURÍDICA. SCOPE OF THIS RIGHT OF CHILDREN AND ADOLESCENTS IN A JURISDICTIONAL PROCESS”, which was published in the Judicial Weekly of the Federation (SEJUFE) on December 9, 2022.
By means of such resolution, the Collegiate Body has considered that it must always seek to protect the right of the child to be adequately represented within the judicial proceedings in which they are involved and, for such purpose, it is vital to know the types of spokespersons that a minor may have.
In accordance with the provisions of the Convention on the Rights of the Child (CRC), the Political Constitution of the United Mexican States (CPEUM) and the General Law on the Rights of Children and Adolescents (LGDNNA), three types of procedural representation in favor of minors are recognized.
- The original, which is exercised by the person or persons exercising parental authority or substitute guardianship over the child.
- The coadjuvant, which is assumed by the State and operates in any procedure as an accompaniment of the original, without replacing or displacing it, being in charge of the federal and local Attorney General’s Office for the Protection of Children and Adolescents.
- The one that is established in substitution for extraordinary cases, which DOES have the purpose of substituting or displacing the original representation and can be given for the following causes:
- When there is no original representation or it is unknown who exercises parental authority or guardianship of the infant;
- When there is a conflict of interest between the minor and the person who exercises the original representation;
- When the judge has a well-founded suspicion that the original representative is performing his function in a deficient or fraudulent manner to the detriment of the person he represents;
- That the authority determines that it is necessary the designation of this type of representation in substitution, attending to the best interest of the child.
It is important to mention that, in the case of the last two types of representation, in order for them to fulfill their objective and be effective and adequate, they must be exercised with a child perspective and comply with the basic principles of specialization, independence and proportionality.
In accordance with these rules, it follows that the judicial authority must take care of the interests of the minor, guaranteeing an adequate defense in accordance with the rights of effective judicial protection and access to justice.
Therefore, in response to the questions posed at the beginning of this article, we can understand that the right of minors to adequate representation is completely guaranteed and the judicial authority will be in charge of watching over it, ensuring the coadjuvant accompaniment at all times during the procedure, in addition to being very careful in discerning the type of official judicial representation that will be provided to the child, so as not to replace the original one unjustifiably or allow it to continue to the detriment of the child.
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