The Independent Children’s Lawyer and a Child’s Rights

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 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.

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.

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?

Not necessarily.

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.