What is an Independent Children’s Lawyer & what do they do?
An Independent Children’s Lawyer (“ICL”) is a lawyer who represents a child independently, by acting in the child or children’s best interests.
ICLs use professional judgment and skill to enable children to be more involved in the decision-making process in proceedings, however they are not required to act on children’s instructions: ICLs are NOT a child’s legal representative. The level of involvement of a child is dependent on a number of factors, including their age, maturity, cognitive development and emotional state.
Appointment of an ICL
Usually, where there are unusual or complex circumstances, a court will make Orders appointing an ICL. Section 68L(2) of the Family Law Act 1975 (“FLA”) also provides that a child, a welfare organisation concerned with the child’s wellbeing, or any other person may make an application for an ICL to be appointed. It is not uncommon for a lawyer to make an application on behalf of their client for the appointment of an ICL.
What are unusual or complex circumstances?
The case of Re K (1994) noted a number of instances where an ICL should be appointed, which includes the presence of allegations of child abuse, apparent unmanageable conflict between the parents, or issues regarding cultural or religious differences affecting the child. Other situations recognised include:
– A mature child is expressing a strong view that would change a long-term status quo,
– Where there is a proposal to separate siblings,
– If neither party is represented,
– If neither party may be a suitable parent,
– Where one party seeks to permanently remove a child from the country,
– If one of the parties is not adequately representing the child’s interests, especially in relation to medical treatment,
– If there are issues regarding either parent, party, other significant person (for example, a new partner of one of the parents), or a child having significant medical, psychiatric, or psychological illness, or personality disorder.
Role of an ICL: what the courts have said
The Family Court case of P and P (1995) offers a useful summary of an ICL’s role and how they are to act, namely:
a) Without restraint, in the best interests of the children;
b) Impartially, making submissions in the best interests of the children; and
c) On the evidence, not from a personal view or opinion of the case.
The court noted other responsibilities of ICLs, including informing the court of the child’s wishes, arranging expert evidence relevant to the child’s welfare, testing other evidence where appropriate by cross-examination, minimising trauma to children, and assisting parties in reaching an agreed resolution of the proceedings.
Role of an ICL: what the law says
In 2006, the FLA was amended and section 68LA was inserted, which largely reflects the duties listed by the court noted above. It provides that ICLs must:
i) Form an independent view, based on the available evidence, of what is in the best interests of the child;
ii) Act in what the ICL believes is in the best interests of the child;
iii) When satisfied taking a particular course of action is in the best interests of the child, make a submission to the court suggesting taking that course of action;
iv) Act impartially with the parties;
v) Fully put any views expressed by the child before the court that are relative to the matters in the proceedings;
vi) Analyse and identify significant matters for determining what is in the best interests of the children in a report or document that is to be used in proceedings, properly drawing identified matters to the court’s attention;
vii) Endeavour to minimise trauma to the child;
viii) Insofar as it is in the best interests of the children, facilitate an agreed resolution of matters at issue in the proceedings.
ICLs are an impartial party who’s role is to ensure that children’s best interests are put to the court. There are various guidelines for how ICLs interact with children, such as how to communicate that what they are saying may be told to the Judge and the children’s parents, and to keep expectations realistic, in that an outcome at court is not always going to be the same as views expressed by the children.
They assist the court in being an unbiased legal representative for the child’s best interests, in the difficult task of making orders for children to spend time with parents in circumstances where there may be two highly inconsistent lots of evidence from each parent, and where allegations are present that accordingly require children’s best interests to be independently represented.