Introduction

In matters concerning the welfare and best interests of children during family law disputes, the role of an Independent Children's Lawyer (“ICL”) becomes crucial. An ICL is appointed to represent and safeguard the interests of children who may be affected by parental separation or other family law matters. In this article, we delve into the important aspects of an ICL's role, their appointment process, their responsibilities, and other relevant information.

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What is an Independent Children's Lawyer (ICL)?

An ICL is a legal professional who acts independently and impartially in family law proceedings involving children. They are typically appointed by the Court under section 68L of the Family Law Act 1975 to represent and promote the best interests of a child or children.

The ICL does not represent either the mother or the father but instead, focuses solely on the best interests of the child or children involved.

When is an Independent Children's Lawyer Appointed?

The case of Re K (1994) FLC 92-461 suggested that the Court should appoint an ICL where one or more of the following circumstances exist:

1. there are allegations of child abuse or neglect;
2. there are allegations of family violence;
3. there is a high level of conflict and dispute between the parents;
4. a child of mature age is expressing strong views but there is disagreement between the parents about the child’s views;
5. serious mental health issues exist in relation to one or both of the parents, or the child;
6. a parent proposes to remove a child from the jurisdiction which would greatly restrict or exclude the other parent from access to the child;
7. a parent proposes to separate siblings;
8. there are issues of cultural or religious difference between the parents affecting the child;
9. both parents are self-represented;
10. on the material filed by the parents, neither parent seems to be a suitable or appropriate carer for the child; and/or
11. there are difficult and complex issues involved in the matter.

This list of circumstances is not exhaustive and the Court may find other reasons to appoint an ICL.

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What Happens after an Independent Children's Lawyer has been Appointed?

Once the Court has ordered that an ICL is appointed, the Court will forward the request to Legal Aid and the Legal Aid Commission will select who the ICL is going to be. The ICL may either be a solicitor from Legal Aid itself or a solicitor in a private practice firm who accepts and is approved to act on legally aided matters.

Once an ICL has been selected, the ICL becomes an official party to the proceedings. The ICL begins their work by gathering relevant information about the child or children and their family situation. This may involve conducting interviews with the child or children, observing their interactions with parents and other relevant parties, issuing subpoenas and obtaining other evidence, and reviewing documents and reports related to the case. The ICL may also consult with professionals such as psychologists, social workers, or medical experts to gain a comprehensive understanding of a child's needs.

The ICL is also required to file Court documents and attend events such as Court hearings and mediations.

What is the Role of an Independent Children's Lawyer?

The role of an ICL is detailed in section 68LA of the Family Law Act 1975.

Essentially ICL’s are required to form their own independent view about what arrangements or decisions are in the child’s best interests based on the evidence available to the Court.

It is important to note that the ICL is not the child’s legal representative and is therefore not obliged to act on the child’s instructions.

The ICL’s main duties include:

1. Acting honestly and impartially in dealings with parents;
2. Arranging for necessary evidence, including expert evidence, to be obtained and put before the Court, and with such evidence to be properly analysed and identified and drawn to the Court’s attention, so as to assist the Court with determining what is in the child’s best interests;
3. Depending on the child’s age and the nature of the case, facilitating the participation of the child in the proceedings including meeting personally with the child to ascertain their views and wishes and ensuring that such views and wishes are put to the Court. On this, the ICL is under no obligation to disclose to the parents or to the Court of any information that the child tells them unless they form the view that the disclosure is in the child’s best interests;
4. Endeavouring to minimise the trauma to the child in the proceedings; and
5. Facilitating settlement negotiations where appropriate and where such an agreed resolution reflects the best interests of the child. On this, even if a settlement is reached between the parents, if the ICL believes that the proposed settlement is not in the child’s best interests, they will alert the Court of this.
   
   

Who Pays for the Independent Children's Lawyer?‍

The ICL is funded at first instance by Legal Aid. But it’s important to note that Legal Aid typically can’t cover the ICL’s costs in full so in most cases, the parties will have to contribute as well.

Legal Aid can request each party to contribute towards the ICL’s costs, depending on their financial circumstances. Upon the finalisation of the matter, the Court can also order one or both of the parties to contribute towards the ICL’s costs.

Conclusion

In family law matters involving children, an ICL plays a vital role in ensuring the child's best interests are protected. By providing an independent perspective, representing the child's voice, and advocating for the child’s best interests, their appointment brings an added layer of expertise and consideration to the proceedings, ultimately striving for outcomes that prioritise the child's well-being, as opposed to those of the parties.

If you’re wanting to appoint an ICL in your matter or an ICL has been already appointed and you wanted to discuss this appointment further, please reach out to one of our family lawyers today on (02) 8605 3437 for an obligation free and confidential discussion.