What is the Role of an Independent Children’s Lawyer in 2021?
What is an Independent Children’s Lawyer?
An Independent Children’s Lawyer or ICL (these terms will be used interchangeably in this guide) is a lawyer that represents a child in any family law court proceedings that are heard in the Family Court of Australia, the Federal Circuit Court of Australia, or the Family Court of Western Australia.
This article will act as a general guide on their role in court proceedings. For personalised legal advice, contact Unified Lawyers on 1300 667 461.
What does an Independent Children’s Lawyer do?
An ICL represents a child’s bests interests in any family law court proceedings and presents information in any family court proceedings. Their main roles is to act in the best interests of the child/children as an additional party to the family court proceedings. In their role, an ICL will:
- read all the affidavits
- examine any subpoenaed documents
- speak with child (depending on their age and the circumstances
- talk to a family consultant and other relevant people, such as a teacher, doctor, children’s counsellors, or psychologists
- listen to any evidence
- facilitate settlement negotiations between the parties
- offer an independent perspective in relation to what decisions would be in the child’s best interests.
An Independent Children’s Lawyer will also research case law and use that to submit their court submissions.
They act independently and consider what is in the child’s best interests. They also consider the views of the children.
Why has an Independent Children’s Lawyer been appointed?
The reasons an Independent Children’s Lawyer will be appointed include:
- a communication breakdown between the two parties with a high level of conflict
- one of the two parties is not a biological parent
- there are cultural or religious differences
- A person other than the parents has care of the children
- one of the parents has a significant mental illness and/or a personality disorder
- An order has been made under the State Children’s Welfare Legislation
- one of the parents has abnormal or antisocial behaviours
- the child has trouble adapting to a new family situation
- the child or the parents have serious mental health issues
- there is a history of litigation over parental responsibility by one or both of the parents
- there is a risk that the child will be removed from the jurisdiction that they reside in
- the parents want to come to an arrangement that would separate the children
- there being complex issues involved
- there are allegations of abuse or neglect
- there are allegations of family violence in relation to the child.
What is the role of an Independent Children’s Lawyer?
The role of an Independent Children’s Lawyer is outlined in Section 68LA of the Family Law Act 1975 (Cth). Their main role is to act in the best interests of the child.
To do so, they must find out what the child wants. The purpose of this is for the ICL to be able to act in accordance with the child’s best interests. However, this does not mean that the ICL will always follow the child’s views. The ICL must also consider child’s age and maturity, and must act in the child’s best interests, even if that is to act against the child’s wishes.
An ICL will encourage and assist the parties to negotiate an agreement, based on what will be in the child’s best interests. Negotiation may take place outside of the court, however, it may be through a judicial ruling in court.
Their duty is to inform the court when a decision is made that isn’t in the child’s best interests.
They should act as an honest broker between all the parties and assist with settlement negotiations. They may also have a role in ensuring any arrangements are adhered to; and finding out if the child has any concerns.
What information does the ICL use when assessing what is in the child’s best interests?
To determine what’s in the child’s best interests, the ICL will:
- speak to the children, unless they are not yet of school age, or there are extraordinary circumstances;
- talk to the child’s school teachers, principals, and counsellors;
- review documents from various organisations, including, schools, the Department of Family and Community Services, or the Police;
- review medical or psychological records of the children, and their parents;
- question witnesses, such as the parents, or experts at the final hearing;
- make the arrangements for a Family Report from a family consultant.
What is a family report?
A family report is written by a court-appointed family consultant, such as a social worker or psychologist, with expertise in dealing with children and court matters. It is an independent assessment of any issues in a case, such as mental health impairments. It can be used to inform court decisions. It could also help the parties in the case reach an agreement before the hearing.
What is the purpose of the family report?
The purpose of a report is to offer an independent assessment of any issues related to the case.
The report will provide recommendations and they may suggest a particular course of action, based on what arrangements will be in the child’s best interests. These recommendations will be based on:
- the disputed issues
- past and current parenting arrangements
- any risk to the child
- the child’s views
- the parenting ability of each party;
- the child’s relationship with certain individuals.
Can I share the family report?
No. It cannot be shown to anyone who is not involved in the court proceedings, without written consent from the court.
The report can only be shared between the parties involved in the court case after the court grants authority for it to be shared. It cannot be shown to anyone who isn’t involved in the court proceedings, without written consent from the court.
If the report is shared with anyone outside of the case, they could be charged with an offense under Section 121 of the Family Law Act 1975 (Cth).
How does a family report differ from a single expert report?
A single expert report is written after a professional, such as a social worker or psychiatrist has made an assessment. It may be used to show evidence of mental health issues.
If a single expert report is required, you may need to pay for it.
Are there limitations to an ICL’s role?
An ICL cannot become a witness in any proceedings or conduct therapy with a child.
They should be careful to avoid the child becoming overly dependent on them and should seek advice on how to respond to a situation where the child has become dependent.
They should communicate to the child how long their role will last, and what contact if any, they will continue to have after the conclusion of the proceedings.
How often will a child see an Independent Children’s Lawyer?
All legal matters are different and this means that there is no set amount that a child will see the ICL.
It will depend on the nature of the case.
How is an Independent Children’s Lawyer appointed?
An ICL will be appointed by the court. If the court makes an order for an ICL on their initiative, they will also contact Legal Aid NSW or the equivalent in another state or territory.
Legal Aid has its own in-house ICLs that it can provide.
Can parents object to an Independent Children’s Lawyer?
Yes, they can. The Family Law Rules allow any party in a case to apply to the court for the Independent Children’s Lawyer to be removed. The courts are generally reluctant to approve the application.
Who pays for an independent children’s lawyer?
Generally, the costs of an ICL will be divided evenly between the parties. However, if you are experiencing financial hardship, you may be able to make an application to Legal Aid NSW to cover the cost of the ICL.
Additionally, the court can also make a costs order for one, or more of the parties to the case to pay the full cost.
Does the Court always make the orders the ICL recommends?
No. The judge hears all the evidence that is relevant to the case and then makes a decision based on all the evidence heard.
Can parents talk to the Independent Children’s Lawyer?
It is a legal requirement that an Independent Children’s Lawyer remains impartial.
Therefore, communication between parents and an ICL will be limited. Communications will normally be done through each of the party’s lawyers, rather than direct.
Independent children’s lawyer and children’s best interests
Section 60D of the Family Law Act 1975 (Cth) outlines the responsibilities that an ICL has in relation to court proceedings involving children. The underlying principle is that they act in the child’s best interests.
They must ensure that they let the parties in the proceedings know what will be in the child’s best interests.
The Independent Children’s Lawyer make recommendations that will ensure the child’s safety and wellbeing.
What happens when the case is over?
After the case, the Independent Children’s Lawyer will explain the court orders to your child if they are old enough to understand them.
They may also have a role in ensuring any arrangements are adhered to; and finding out if your child has any concerns.
United nations convention on the rights of child
Three decades ago, international leaders committed to the children of the world. They created the United Nations Convention on the Rights of the Child.
This is an international agreement between parties to the agreement. The convention has 24 key principles, which are on the United Nations website.
Sometimes, even after trying to reach a mutual parenting agreement, parents will find themselves at a stalemate, with no way to progress. In circumstances where this is the case, you may need to utilise the services of a professional family lawyer. A professional family lawyer will remain impartial in any proceedings and will base any recommendations on the law and what will be in your child’s best interests. They can help with mediation, which may help you reach an agreement before a matter goes to court.
Unified Lawyers are one of Sydney’s top-rated family law firms. We take a considered approach to any legal matter that we are dealing with. We’ll gather all the facts that are relevant to your case and will provide advice on how to proceed.
Call us today for a Free Consultation on 1300 667 461.