One of the primary objectives of the Court in parenting matters is to determine what the best interests of the children are and to make orders to that effect, particularly in the case of separation or divorce. In some circumstances, an Independent Children’s Lawyer (‘ICL’) will be appointed. An ICL is a lawyer who represents your child/children and acts independently from either party.
What is the role of an Independent Children’s Lawyer?
The essential role for an ICL is to ensure that a child/children have a meaningful voice in their parent’s family law proceedings and that their best interests are protected.
The main functions of an Independent Children’s Lawyer include:
- Collecting evidence and putting it before the Court – for example, reports from the child’s psychologist, doctor or teacher;
- Facilitating the participation of the child in the proceedings in an age appropriate way; and
- Making recommendations to the Court as to what Orders should be made to reflect the best interests of the child. These recommendations may be different to what you think the child has told the ICL. This is because the ICL is not required to simply “parrot” the child’s comments, rather they apply their expertise to what the child has said to determine their best interests.
It is unlikely that an ICL will be appointed if your child is very young. They are usually engaged for children between the ages of 5 and 15 (but there are exceptions to that guide).
When do you need an Independent Children’s Lawyer?
An ICL is usually appointed by the Court upon application by one of the parents or by the judge’s own volition if one (or more) of the following circumstances exist:
- There are allegations of abuse, neglect or family violence in relation to the children;
- There is a high level of conflict and dispute between the parents;
- The children are mature enough to be in a position to express their own views and those views are in contradiction to one or both parents;
- One or both parents or the children suffer from serious mental health issues;
- There are proposals made by one or both parents to relocate the child;
- There are proposals made by one or both parents to separate siblings; or
- There are any other difficult or complex issues that require a third party to represent the interests of the children.
What should you do when an ICL is appointed?
If your child is old enough to be engaged:
- Make sure your child attends all appointments arranged by the ICL;
- Do not question your child/children about their sessions with the ICL. These sessions are private and confidential;
- Do not put pressure on your child/children to raise certain topics with the ICL during their sessions;
- Allow and facilitate your child/children to contact the ICL as they wish; and
- Do not contact the ICL directly. All contact must be made through your solicitor.
What information does the Court consider to determine what is in the child/children’s best interests?
Whilst each case is different, the ICL will often take the following steps before making any recommendations to the Court:
- Read all affidavits filed with the Court to date;
- Issue subpoenas and examine any subpoenaed documents;
- Talk with your child/children in an age appropriate way;
- Talk to the family consultant and any other relevant people including the child’s teacher, doctor, psychologist or counsellor; and/or
- Arrange for a family report with a family consultant.
Who pays for the ICL?
Legal Aid is responsible for making arrangements for the ICL and will cover some of the costs. However, it is highly likely that the parties will also need to contribute. The Court can make one or both parties pay for the ICL’s costs.
If an ICL has recently been appointed in your family law matter or if you believe that an ICL may be an appropriate person to become involved in your case, please contact one of our family lawyers.
Important Disclaimer: The content of this publication is general in nature and for reference purposes only. It is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.