What is an independent children’s lawyer? 4 important duties

Legal disputes arise due to a disagreement between parties as to either facts or interpretation of the law. In family law matters, it is usually the former, with opposing parties giving different versions of events and allegations against the other.

By Yianni Kordos, Practice Leader at AFL-Kordos, Melbourne.

 This is especially the case in high conflict parenting matters, where it is not unusual for serious allegations to arise in relation to family violence or mistreatment of children.

In these circumstances, the Court will usually benefit from receiving an impartial perspective and evidence, such as family reports prepared by specialised child experts. In addition to this, the Court has the power to appoint an Independent Children’s Lawyer, or ‘ICL’ for short.

The role of an independent children’s lawyer:

The role of the ICL (as the name would suggest) is to assist the Court by forming and presenting an independent view as to what outcomes would be in the best interests of the child
to whom the proceedings relate.

Section 68LA of the Family Law Act 1975 sets out the specifics of the role of an ICL but in summary, they are tasked with the following:

• Ensuring that the views expressed by the child (where relevant) are put before the Court;
• That any reports or any other relevant document (which would assist the Court in determining matters) are drawn to the Court’s attention;
• Use their best endeavours to minimise the level of trauma to any children associated with the proceedings; and
• Where it is in the best interests of the child, act to facilitate an agreed resolution of the extant issues between the parties in dispute.

To summarise, an ICL can be viewed as an impartial third party whose primary function is to provide the Court with an independent view as to what outcome would be in the best interests of the child, with their secondary function being to try and resolve the dispute by consent (on the basis that this is usually the best outcome for the children).

It should be emphasised that despite their title, the ICL is not the child’s legal representative. While an ICL is able to interview the children to ascertain their views (insofar as it would assist the matter), they are not obligated to act on the instructions of the child involved in the proceedings.

How and when is an independent children’s lawyer appointed?

The appointment of the ICL can be made by the Court at any stage of proceedings, either by its own motion or on the application of the child, an organisation concerned with the welfare of children (such as the Department of Families, Fairness and Housing) or any other person.

Usually, an Order for the appointment of an ICL is made in circumstances where a party to the proceedings makes an Application for such Order (supported by Affidavit), or where reports as to Family Violence are made by the relevant authority pursuant to Section 69ZW of the Family Law Act 1975.

The most common grounds for the Court to consider when appointing an ICL tend to be serious allegations of family violence against either one of the parties or the children to proceedings and where there exist significant disputes as to fact or law (which could be assisted by the appointment of an independent third party). The practical effect of an order for the appointment of an ICL is usually that the court notifies the relevant legal aid body of the appointment. The appointed ICL is either an in-house solicitor employed by Legal Aid, or a private practitioner experienced in dealing with such matters or accredited through the National Independent Children’s Lawyer Training Scheme.

Can an ICL be removed from your case?

The involvement of an ICL in a matter most commonly ceases where the parties have either resolved matters on a final basis by way of Consent Orders, or where the Application for Final Orders or Appeal has been finally determined. There are some grounds where an ICL may be discharged prior to the final determination of the matter, usually in circumstances where it can be proven that the ICL did not carry out their prescribed roles set out above. Examples of this are:

• if there is evidence that the child representative acted contrary to the child’s best
  interests;
• if there is evidence that the child representative acted incompetently in a professional
  sense
• if it is apparent that the child representative demonstrated a lack of professional
  objectivity; or
• if the ICL’s ongoing involvement would entail a breach of fiduciary duty or conflict of
  interest.

Due to the limited resources available for the appointment of ICLs, Courts are usually hesitant to discharge an ICL unless a party is able to produce significant evidence as to any of the above. A Court will not act on the basis of unsubstantiated allegations. Ultimately, the ICL is not the ‘final say’ when a Court is required to determine parting disputes, however, the nature of their appointment and involvement in matters will usually have some degree of influence upon the final outcome.

If you’d like to support with your family law issue, call our friendly team directly or request a call back via the form below.