Who and what is an Independent Children’s Lawyer?

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In the event of a relationship breakup, separation, or divorce, it is entirely possible for both parties to work through all the issues and arrive at their own agreement. Such a mutually acceptable agreement can then be legally formalised with Court issued Consent Orders in the general areas of finance and parenting rules.

However, it is not really breaking news that not all situations are resolved in this manner.

For many and varied reasons, a good many breakups are to varying degrees acrimonious, and it is left to the Family Court to follow established protocols in determining solutions that are deemed to be just and equitable for all concerned.

The ham in the sandwich

Where children are involved, they are always the greatest priority of the Court. It would be reasonable to assume that both parties in a breakup would act and behave with those interests as their greatest priority as well, but this is not always the case.

Usually, both parties will have their own legal representation, who will on the one hand offer sound advice, and on the other, receive directions as to the desired way forward.

Children, however, usually have no such representation, as usually it is not needed. But there are some circumstances where the Court will direct that an Independent Children’s Lawyer (ICL) will be appointed. An ICL may also be requested by either party.

Criteria for making that judgment would include:

  1. There are allegations of child abuse or family violence.
  2. The conflict between the parties is assessed as severe.
  3. The children are old enough and of sufficient capacity that they have relevant views, but the parties disagree as to what those views are.
  4. There are serious concerns regarding the mental health of the child, or of the parties.
  5. There is a risk that a child may be removed from the current jurisdiction, which would deny access.
  6. Both parties are legally self-represented, leaving no trained legal representation for the child.
  7. A party is seeking to separate siblings.
  8. Neither one of the parties is deemed to be an appropriate carer.
  9. There are other especially complex issues.

Under such circumstances, the Court may well decide to appoint an ICL to the child. The Family Law Act makes very clear the specific duties of the ICL, and it is important to note that the ICL is not the child’s legal representative, and is therefore not obliged to act upon the child’s instructions.

Lawyers and barristers who are approved to act as ICLs will have several years of appropriate experience in family law and will be required to undergo significant and specific training before being approved to act in that role under the auspices of Legal Aid.

ICLs have very clear and defined duties, which include:

  • Acting completely impartially in dealings with the parties.
  • Ensuring that views expressed by the child are fully and clearly put before the Court.
  • Minimizing any possible trauma to the child.
  • Facilitating any agreed resolutions where doing so is in the child’s best interests.

An ICL may, depending upon the age of the child, meet personally in order to attempt to ascertain the child’s views and wishes, but has no obligation to inform either the parties or the Court of such meetings unless doing so is in the best interest of the child.

ICLs operate under the umbrella of Legal Aid in the applicable State. Once a matter is concluded they must seek a Court order for parties to contribute to costs.

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