- An independent children’s lawyer plays the important role of ensuring that a child’s best interests are represented in legal matters that affect them.
- An ICL will provide recommendations to the court based on their investigation of your situation. Their investigation usually involves reviewing reports and records, as well as interviewing the child and various other people the child may speak to or spend time with.
- If an ICL is required in your family law matter this is not a cause of concern and it is recommended that you cooperate with them to ensure an efficient resolution.
Independent Children’s Lawyers
Many family law matters and disputes that arise between former couples involve their children. From parenting matters and child custody to living arrangements and property settlements – each of these decisions can affect a child’s life significantly.
When family law decisions will affect a child, the decision must be made with the child’s best interests as one of the key considerations. However, while many family law matters will affect children, children are rarely directly involved in actual family law proceedings, so how are their best interests known?
This is where an Independent Children’s Lawyer or ICL, comes in. Rather than have children be involved directly in family law proceedings or have parents speak on behalf of their child, an ICL can be appointed to ensure that what is best for the child and the child’s views are known, understood and considered in the matter.
An Independent Children’s Lawyer has a very important role as a child’s representative; however, their services are not required in every family law matter involving children. In this article, we’re going to discuss the role of an ICL, including the processes they commonly undertake, as well as answer the most common questions we’re asked as family lawyers about Independent Children’s Lawyers.
Keep reading to learn more about ICLs in family law matters in Australia.
What is an Independent Children’s Lawyer?
An ICL or Independent Children’s Lawyer is a lawyer who will represent the best interests of a child in a parenting dispute or family law matter. They will be appointed by the Court, but not just any lawyer can be appointed to act as the ICL.
An Independent Children’s lawyer must have undergone specific training requirements before being able to become an ICL. The training includes programs that ensure the lawyer will understand the complexities they may experience as part of their role, and they must have at least 5 years of experience in family law work in cases that involve children’s issues.
The extensive training and expertise is required to ensure an ICL can make an impartial, reliable and valuable recommendation to the Court about the best interests of the child.
What is the role of the ICL?
The way in which an ICL will do this may differ from case to case, and we will outline the general processes of an ICL later in this piece, however, essentially, the ICL needs to act an “honest broker” between all parties involved in the family law matter to ensure that the best interests of the child are known and advocated for.
While parents may believe they know what is best for their child, the complexity of family law matters can often cause heated disputes and emotional stress, which can often overshadow the actual best interests of a child and leave the parents expressing biased views.
Under Section 68LA of the Family Law Act 1975, the ICL needs to be an impartial third party who can ensure that the child’s views that are relevant to the proceedings are put before the court and they must be able to analyse reports, documents and information to present their findings as to what may be in the child’s best interests.
An ICL also ensures that Australia’s family law system is on the same page as the 1989 United Nations Convention on the Rights of the Child – which is an international human rights agreement that outlines the specific rights of children. There are a number of articles in the agreement, including Article 3 which outlines that the best interests of the child should be the paramount consideration in all actions concerning children; and Article 12 which upholds the right for children to be able to freely express their views if they are capable to do so, as well as the right to be provided with every opportunity to be heard, whether directly or through representation, in matters that affect them.
It’s important to acknowledge that while the ICL ensures that the child’s best interests are represented, which may include the child’s views and wishes, the ICL does not act on the child’s instructions like they would if they were the child’s legal representation. Rather, they ensure that the child’s opinion is heard so the child can participate indirectly in family law proceedings.
In addition to ensuring that the child’s best interests are represented in family law proceedings, an ICL may encourage and take part in negotiations or mediations that may help to settle a family law matter that is in your child’s best interests, as well as ensure that your child understands the outcome of the matter. They may also determine whether an independent assessment by an expert, known as a family consultant, is required to prepare a Family Report to aid in making decisions about the arrangements for the child.
What are the best interests of a child?
The best interests of a child is a phrase that you may hear frequently if you’re involved in a family law dispute, particularly one involving children. This is because it’s a key principle of the Australia family law system. When parents or a court makes a decision that relates to a child, they must take the child’s best interests into account.
In the Australian Family Law Act 1975, Section 60CC, there are a number of considerations that help to determine what a child’s best interests are, however, the two primary considerations are:
- The benefit of the child of having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As we mentioned above, the best interests of a child are also a child’s right principle in the United Nations Convention on the Rights of the Child, and in this context, it means to evaluate and balance “all the elements necessary to make a decision in a specific situation for a specific individual child or group of children.” Some of these elements include factors such as the child’s views and aspirations, the child’s well-being, and situations of vulnerability.
What is a family report?
When matters are particularly complex, an ICL may make an application to the court for a family consultant. The family consultant will create a family report which will include information about the child in question, their family and anyone involved in the matter, which is usually gathered through interviews conducted by the family consultant. This report is meant to further assist in making a decision about the children in a parenting matter.
Why would an ICL be appointed?
While an ICL may be appointed to be able to represent the welfare and views of child in a case, they may not be appointed in every case that involves children.
ICL’s are commonly appointed when a case involves difficult and complex issues such as the following:
- Abuse allegations in relation to the child;
- Allegations of family violence involving the parents and/or children;
- High conflict and dispute levels between the parents;
- Mental health issues exist in one or both parents; and/or the child;
- A child is or is apparently alienated from one or both parents;
- Neither parent seems to be a suitable custodian for the child;
- The conduct of one or both parents may impact the child’s welfare; and
- Allegations of the child’s views have been made by a parent and the child is of a mature age to be able to express their own thoughts and views.
Who appoints an ICL?
An ICL can only be appointed by a court, and they may do so on the basis of the Court’s own volition, or on the application of the child concerned, the application of an organisation concerned about the child’s welfare, or the application of any other person concerned about the child’s welfare.
The Process of an ICL
As the primary role of the ICL is to ensure the best interests of the child is represented in family law proceedings, they need to be able to determine what the best interests of a child actually are. As every case is unique, an ICL needs to learn as much as possible about the child and their circumstances in question and use this information to come up with recommendations about what would be in the child’s best interests.
The general steps an ICL will take include:
An ICL will usually read all documents that are available relating to the proceedings, such as those that have been filed by the parties involved.
They will then need to gather further information to learn about the child/children’s current circumstances. The information may be gathered through obtaining documents such as medical and psychological records, speaking with people who are in regular contact with the children, such as their teachers and/or counsellors. They may also question witnesses, such as the parents of the child.
The ICL may also then speak with the child or children involved in the matter. It may not be appropriate for the ICL to speak to the child, this is usually determined by the age of the child. The child needs to be of a mature age, which is usually school age.
The ICL may speak with the child multiple times or only once, this is entirely dependent on the circumstances of the case.
If the ICL believes that more information may be required, they may apply for a family consultant to be engaged to prepare a report that provides further details about the child and their circumstances.
The ICL will compile and review all information, including all documentation, interviews conducted and all witness accounts, and using this information, along with their extensive past experience and landmark family law cases, they will analyse and determine recommendations (if there are any) of orders a court should consider making for that child and their parents.
Present information and recommendations
An ICL may be able to make recommendations about your proceedings early on and provide this information to your legal representation, or you, if you do not have legal representation. Or they may take longer to provide their recommendations as the best interests of the child may not be apparent early on.
The findings of an ICL may be able to help parents to negotiate and settle their matter earlier and out of court. Otherwise, the ICL may be required to present their findings to the court during the court hearing.
If the ICL is required to present their findings during the hearing this may occur during cross examination, the presentation of evidence and/or making submissions.
Provide outcomes of the matter to the child
Once the court proceedings have been finalised, it is the role of the ICL to provide the results to the child/children involved, to ensure they understand the outcome of the matter and how it will affect them.
Frequently Asked Questions about Independent Children’s Lawyers
Should I be worried if an ICL has been appointed?
While it is understandable to have trepidations about an Independent Children’s Lawyer being involved in your situation – after all, what do they know about you and your child? – their involvement is to ensure that your child’s voice is heard. A child can’t attend court or represent themselves, and though you may think that you know what your child wants, often it can be difficult for a child to fully express themselves to either parent. This expression can be difficult for children as they are often concerned with hurting their parent’s feelings.
The ICL is a safe person for your child to talk to and their role is to ensure that they aren’t taking sides of any party involved, rather they are advocating for the best interests of your child, which includes coming to a resolution in your matter.
If I’m the parent of the child, can I speak to the ICL?
The parents of the children in the matter will almost always have limited communication with the Independent Children’s Lawyer that has been appointed. This is to allow the ICL to remain as impartial as possible.
The ICL may conduct an interview with the parents of the child, they may communicate with you to arrange their meeting with your child, and if you are representing yourself in your matter, they may communicate their findings with you.
If you have information that you believe to be of importance for the ICL, then it is often advised to communicate through your family lawyer to discuss the matter with the ICL.
Does the judge often make their ruling in agreeance with the ICLs recommendations?
Not necessarily. The findings and information that ICL provides is to help the judge to understand as much about the child’s circumstances as possible. Your child’s interests are important, so the information provided by the ICL is vital, however, the judge listens and takes all evidence and information provided by all parties into consideration before making any orders.
Can the views or recommendations of the ICL ever change?
Yes. The views of the ICL are always made based on the evidence available at the time. If more evidence arises that impacts the basis of their recommendations, then they may need to update their suggestions to take this into account.
Will the ICL agree with my child’s wishes?
They will take their wishes and opinions into consideration, but they will also consider all other evidence, factors and circumstances before making a recommendation that is in the child’s best interests. Your child may have an opinion or thoughts but they may not have a complete understanding of what is in their best interest.
The role of the ICL is to ensure your child’s best interests are taken care of.
Things to be aware of if an ICL has been appointed to your case
- Your child may be required to see the ICL numerous times. This isn’t anything to be alarmed by and it is different for every case.
- The sessions between your child and the ICL are private. You shouldn’t ask your child what was said during them. The point is for the ICL to provide an impartial recommendation.
- You may not agree with the recommendations of the ICL. In fact, the parents disagreeing with the recommendations of the ICL is very common. Again, their role is to provide an impartial recommendation based on the information and evidence they gather and analyse.
- Family law matters can be extremely complex and difficult to understand. When high levels of conflict exist, it can be even more stressful and difficult. If possible, you should consider hiring a family lawyer to help you through the process.
Are you involved in a parenting dispute?
If you have recently separated and you have children, you’re going to be required to make a lot of decisions and changes to your life. These changes can be complex and made even more difficult by the emotional nature of a relationship breakdown. At Unified Lawyers, our family lawyers are highly experienced in a wide variety of family law matters, including all aspects of separation and divorce, as well as parenting and children’s matters. Don’t struggle to come up with the solution alone. We can help you understand and be aware of all of your options so that you can make an informed decisions about your future and the future of your child.
Work with Australia’s family law experts today. Call us on 1300 667 461 or book a consultation using the button below.