What is the role of an Independent Children’s Lawyer?

In parenting cases that involve allegations of risk and/or family violence, the court may appoint an Independent Children’s Lawyer (‘ICL’) to separately represent and promote the best interests of a child, or children, in family law proceedings.

ICL’s are experienced family lawyers who undertake specialised training to ensure they can fulfil their important roles and responsibilities.

When will an Independent Children’s Lawyer be appointed?

An ICL is usually appointed by the Court when one or both parties make an application for their appointment and or more of the following circumstances exist:

• There are allegations of abuse or neglect in relation to a child, including sexual abuse;
• There are allegations of family violence;
• One or both parents, or the child, has serious mental health issues;
• There are difficult and complex issues involved in the case, such a high medical needs of the child;
• There are allegations made about the views of a child, and the child is considered mature enough to express their views;
• A high level of conflict and dispute exists between the parents.

If neither party applies for an ICL to be appointed, the Court can also appoint an ICL of its own volition if it is appropriate to do so.

What is the role of an Independent Children’s Lawyer?

ICL’s are appointed to represent the interests of the children. Importantly, although an ICL is obliged to consider the views of the child, an ICL is not required to act on a child’s instructions or in line with a child’s views.

Instead, ICLs are required to form an independent view about what arrangements or decisions are in the child’s best interests, based on the evidence available.

In arriving at their view and discharging their obligations, an ICL may:

• Meet with the child if they are old enough and establish a professional relationship (although this is not currently mandatory);
• Talk to the child’s psychologist, counsellor and school teachers;
• Obtain and examine documents from the child’s medical professionals, psychologists, hospitals, schools, police and child welfare authorities;
• Arrange for independent expert evidence to be obtained, including from private family report writers or the Court Children’s Service; and
• Test, by cross-examination where appropriate, the evidence of the parties and their witnesses.

If a child expresses a view about what arrangement or decisions should be made for them, the weight that the Court ultimately gives to that view will depend upon the child’s age and level of maturity. It may also depend upon a range of other factors, such as the circumstances of the parents’ relationship and the parenting arrangements at the time the view was expressed.

The ICL is not required to extract a child’s view and where a child does not express a view, or does not wish to do so, the ICL must not pressure them into doing so.

Section 68LA of the Family Law Act 1975 sets out the duties of an ICL which, importantly, include that an ICL must act in the best interests of the children and endeavor to minimise the trauma to the child associated with the proceedings.

Involvement of the Independent Children’s Lawyer in Court and Mediation

Once an ICL is appointed, they become a party to the proceedings with the same rights and obligations of the other parties. This means that ICLs are involved in all future court hearings, as well as mediation and dispute resolution events.

ICL’s are required to facilitate an agreed resolution of issues in the parenting dispute provided they are satisfied that resolution is in the child’s best interests.

Parenting disputes are often complex and very challenging for the children and parents involved. If you require specialist advice regarding a parenting dispute, please contact us.