In family law matters, both parents will typically have their own family lawyers to represent their interests.

However, when it comes to parenting matters in particular, the interests of the child (or children) of the relationship are of critical importance to any Court decision.

This leaves a problem – while both parents and their lawyers may well believe their view of the correct outcome is in the child’s best interests, they may also be putting forward quite different views about what those best interests are. Of course, children cannot typically afford their own lawyers. So how are their interests to be impartially represented for the Court’s consideration?

This is where an Independent Children’s Lawyer (or ICL for short) may get involved.

In this article we’ll discuss how the Independent Children’s Lawyer is appointed, their role and function.

How is an Independent Children’s Lawyer Appointed?

An ICL is appointed by a Court order.

Matters where there are allegations of violence or abuse, where there is significant conflict, where major health issues (parent or child) exist, or complex matters are more likely to involve the appointment of an ICL.

That said, the Court has a wide discretion about when to appoint an independent children’s lawyer. In any separation where there are children involved there is a chance the Court will take the view that an ICL should be appointed.

Who can Apply to Appoint an Independent Children’s Lawyer?

The Court may choose to make an order of its own accord, or in response to an application made by the child, an organisation concerned with child welfare, or another person (including a parent).

What is the Main Role of the Independent Children’s Lawyer?

The primary duty of the independent children’s lawyer is to form a view about, and express to the Court, what arrangements they believe are in the best interests of the child or children.

They must form this decision independently, and deal impartially with the parents and other lawyers who might be involved in the matter. Their focus is on the child’s best interests. So, if the ICL forms a view that a particular view about a path or outcome that is best for the child they must express that to the Court irrespective of another party’s objections.

That said, the ICL is not simply allowed to form their views based on personal preferences or opinions. They must review the available evidence and gather information available to them (see below) to have a foundation for their opinions.

If the parties participate in mediation, the ICL can assist the parties to reach a resolution but only to the extent it relates to the child’s best interests. If the parties reach an outcome that the ICL believes is not in the best interests of the child, then they will inform the Court about that view.

For the proceedings themselves, part of the independent children’s lawyer’s role is to minimise any disruption or trauma that the proceedings themselves might cause to the child. They will explain their role and its limitations, the Court processes, and the role and reason for any other agencies that might be involved in the proceedings.

How does the Independent Children’s Lawyer Gather Information and Form their Opinion?

The independent children’s lawyer can seek information from a wide variety of sources in order to form their views.

Naturally, they will discuss matters with the child. However, unlike a normal legal engagement, information provided by the child to the ICL is not necessarily confidential and may be disclosed to the parties or the Court.

They may speak with the child’s school or counsellors, parents or other witnesses that have relevant information. They might review relevant medical records, including those of a psychiatrist or psychologist.

If applicable, they can speak with child welfare authorities and police.

They might also decide to commission independent expert evidence if they believe it is necessary.

How is the ICL Different from Your Family Lawyer?

While the independent children’s lawyer should develop a professional relationship of trust with your child, they are not “your child’s lawyer”.

First, as mentioned above, information provided to the ICL is not necessarily confidential.

Next, while the ICL will gather information from the child and seek the child’s views on various matters, they are not obliged to follow the child’s instructions. Instead, their role is to express their personal opinion about what outcomes are in the child’s best interests. That said, if they are going to present a view different from the child’s they will tell the child about this first and usually ensure the Court is aware of the difference.

Your family lawyer, on the other hand, will follow your instructions provided they are ethical and lawful.

Who Pays for the Independent Children’s Lawyer?

The independent children’s lawyer is not a free service.

Legal aid may cover some of the relevant fees charged by an ICL.

To the extent that doesn’t happen or there is a shortfall, typically the Court will be looking to one or both separating parties to cover the ICL’s costs.

Can You Object to the Independent Children’s Lawyer or Have them Removed?

Once an ICL is appointed, the Court is reluctant to entertain applications for their removal.

However, if you can demonstrate a serious lack of objectivity, improper conduct (for example, conduct that is not in the child’s best interests) or a conflict of interest you may be able to apply for the removal of a particular ICL.

The ICL guidelines also encourage the independent children’s lawyer to consider their own position from time to time and ensure they are able to discharge their duties adequately. If they form a view otherwise, they should ask the Court to discharge them.

Dealing with the Independent Children’s Lawyer

The independent children’s lawyer must deal professionally and impartially with parties and their lawyers.

If you have a family lawyer, then the ICL will communicate with them throughout the proceedings. If they believe they need to speak with a parent directly for some reason, they can make that request of that person’s lawyers.

On the flip side, do not expect the ICL to automatically tell you everything that your child has said.

Need Help with your Parenting Matter?

Where an independent children’s lawyer has been appointed, it is important to ensure that you deal with them and the Court appropriately in response to their communications and submissions.

If you need help with a parenting matter don’t hesitate to reach out.