An Independent Children’s Lawyer (ICL) is a lawyer who is appointed by the Court to represent the interests of children involved in parenting proceedings, independent of both parents. The role of an ICL is to ensure that children’s best interests are the focus of any decisions about care arrangements. The ICL does not act on the instructions of the child but rather represents the child’s interests – even if the ICL determines that those interests are not aligned with the expressed wishes of the child.
When can an ICL be appointed?
An ICL can be appointed by the Court on its own initiative or on the application of a party (usually a parent), a child, an organisation concerned with the welfare of children or any other person.
An ICL is usually appointed by the Court upon application by one of the parties where one or more of the following circumstances exist:
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There is a high level of conflict and dispute between the parents;
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Serious mental health issues exist in relation to one or both of the parents or children;
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There are allegations of family violence;
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There are allegations of abuse or neglect; and/or
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There are allegations made as to the views of the children, and the children are of a mature age to express their views.
Particularly where both parents are self-represented and there are difficult and complex issues involved in the matter, it can often be helpful for both parents and the Court to have a lawyer (the ICL) involved in the process. The ICL will be skilled in liaising with the Judge on Court occasions and actively arranging for relevant evidence to be put before the Court.
Do ICLs meet with the children?
Yes, generally Independent Children’s Lawyers meet directly with children, unless the children are very young or where exceptional circumstances exist. ICLs are required to facilitate the participation of children in decisions which affect them, in a manner which reflects the age and maturity of the child as well as the nature of the case.
The role of an ICL is not to pressure children into expressing a view, but rather to ensure that any view expressed by a child is placed before the Court in an appropriate manner. An ICL is obliged to consider a child’s views when asking the Court to make particular orders about the child but ultimately, their role is to provide their own independent perspective about what arrangements or decisions are in the best interests of the child.
What else do ICLs do?
ICLs can speak with the children’s counsellors, teachers and principals and examine documents from organisations including the Police and the Department of Family and Community Services (FaCS) and medical records.
At a trial, an ICL can question witnesses including parents, family members and experts such as psychologists who have prepared reports in relation to matters relevant to the welfare of the children.
ICLs can also arrange for a family report to be prepared. A family report is a written report which is issued by a family consultant who meets with the parents, and often the children, and provides an independent assessment of the issues in a matter. The report often assists the ICL to inform their views about arrangements for the children and also help parents to reach agreement.
Where they are involved, an ICL can facilitate the resolution of complex parenting matters by initiating settlement negotiations where appropriate and can act as an ‘honest broker’ between a child and their parents. This role can often make a positive difference where there is a communication breakdown between parties.
If you would like to speak with us or make enquiries about your family law matter, please do not hesitate to contact our office on 9976 5222.