What is an Independent Children’s Lawyer?
When a parenting matter is in Court and there are allegations of risk and/or family violence, the Court may determine that the children need independent representation. If that is the case, the Court will appoint an Independent Children’s Lawyer (ICL).
ICLs are lawyers who are experienced in family law and undertake specialised training to fulfil their role. The role comes with special obligations and responsibilities.
What does an Independent Children’s Lawyer do?
When an ICL is appointed, they are required to represent the interests of the children. Unlike a lawyer acting for a party, who is legally required to follow the reasonable and lawful instructions of their client, there is no obligation on the ICL to act on the children’s instructions or in line with the children’s views.
Instead, ICLs are required to use their own professional judgement and expertise to determine what, in their view, is in the best interests of the children and to promote those interests.
However, children do have a right to establish a professional relationship with the ICL and, accordingly, ICLs do meet with the children where appropriate. Currently, the ICL does not have to meet with the children. On 30 January 2023, the Federal Government released the draft Family Law Amendment Bill 2023 (Bill). One of the recommendations in the Bill is to impose an active obligation on ICLs to meet with the children, to enable the children to express their views.
The views expressed by the children are given varying degrees of weight subject to a variety of factors, including the children’s age and degree of maturity. Where children do not wish to express a view, the ICL must not pressure them to do so.
What are the responsibilities of an Independent Children’s Lawyer?
Section 68LA of the Family Law Act 1975 sets out the role of the ICL. An ICL must:
- Act in the best interests of the children.
- Act impartially and if appropriate, make submissions suggesting the adoption of a particular course of action if it is in the children’s best interests.
- Inform the court of the children’s wishes.
- Arrange for the collation of expert evidence and otherwise ensure that all relevant evidence is before the court.
- Test, by cross-examination where appropriate, the evidence of the parties and their witnesses.
- Ensure that the views and the attitudes brought to bear on the issues are drawn from the evidence and not from the ICL’s personal view or opinion of the case.
- Minimise the trauma to the children in the proceedings.
- Facilitate an agreed resolution to the proceedings.
The ICL and Family Consultants
Family Consultants are professionals with qualifications in psychology or social work who conduct family assessments and produce reports giving recommendations for the benefit of the separated family. The report is submitted to the Court and reviewed by the Judge and the parties in the proceedings.
ICLs often work collaboratively with Family Consultants in establishing the best interests of the children and how those interests may be met.
Family Consultants can provide information to an ICL where they feel it is relevant to the children’s best interests, including:
- Providing an overview of the dynamics of the separated family and the impact on the children.
- Details relating to issues which they think need urgent attention.
- Details of any child abuse notifications made.
- Therapeutic options for the children going forward, including counselling or therapy.
Once appointed, ICLs will be involved not only in court hearings but in family dispute resolution and mediations too. Beyond promoting the best interests of the children, ICLs should also work to assist the parties in reaching resolution.
Importantly, the ICL is considered by the Court to be another party to the proceedings with the same rights, obligations and duties as those attached to the parties.
Parenting disputes are always unique and often complex. If you require assistance with your parenting matter, please call us on 03 8672 5222 to make an appointment with one of our experienced family lawyers.
