Independent Children’s Lawyers
The court’s main concern during parenting matters is what is in the best interests of the child or children. It can be difficult to determine what is in the child’s best interests in some situations, particularly when there are family violence allegations or high levels of conflict between the parents. In some cases, to assist the court to determine what parenting arrangements are in the children’s best interests, an Independent Children’s Lawyer (ICL) will be appointed. The court can appoint an ICL on its own initiative, or a party to the proceedings can make an application to appoint an ICL.
When will an ICL be appointed?
An Independent Children’s Lawyer may be appointed if the case involves:
- Allegations of abuse or neglect of the child (whether physical, psychological or sexual);
- Allegations of family violence;
- A high level of conflict between the parents;
- Significant health issues that affect the child, a parent, or someone else who has a significant amount of contact with the child;
- Significant religious or cultural differences affecting the child;
- Alleged anti-social conduct by a parent, which impacts the child;
- Proposals to separate siblings;
- A proposal by one parent to move somewhere with the child, which would effectively deny the other parent access; or
- If the court has concerns about the child living with either parent.
The court may find other reasons aside from those mentioned above to appoint an ICL based on the circumstances of each individual case.
What is the ICL’s role?
An Independent Children’s Lawyer’s primary duty is to provide an independent opinion about what parenting arrangements will be in the child’s best interests, whether on an interim or final basis. The ICL must remain impartial when dealing with other parties in the proceedings, focusing only on the child’s best interests. While the ICL will try to ascertain the child’s views (if the child is mature enough to hold a view), it is not the ICL’s role to advocate for the child by only putting the child’s views to the court. The child is not a decision-maker nor is the ICL merely the child’s spokesperson.
The ICL’s views and opinions must be supported by admissible evidence, and not their own personal opinions. Throughout the proceedings, the ICL should carefully analyse any reports or documents used in the proceeding and draw the court’s attention to any issues which they consider may significantly impact on the child’s best interests. Such evidence gathering may include issuing subpoenas and obtaining documents from the police, child protection services or government departments, or the child’s or parents’ medical records (physical or psychological); and the ICL speaking to the child’s principal or school teachers, and examine any documents held by the school. The ICL may also arrange for additional objective evidence and analysis of the issues, which could include organising Family Report by an expert psychologist or psychiatrist.
The ICL will also help the parties to reach an agreed settlement in their dispute. However, they will do so only to the extent that is in the child’s best interests. Even if an agreement is reached between parties, if the ICL believes that it is not in the child’s best interests or is ill-advised with respect to the child’s interests, they will not agree to the terms the parties have agreed on and the proceedings will continue.
Can I talk to the ICL?
The Independent Children’s Lawyer must always remain independent and impartial, including in their communications with the other parties. All communication to the ICL in writing should be contemporaneously sent to the other party as well.
If a party has legal representation, their lawyer will communicate with the ICL. If the ICL ever needs to directly contact a party, this must be arranged through the party’s legal representative.
If a party has no lawyer, the ICL can communicate directly with them. However, the ICL must also inform the other parties that this has occurred.
The ICL will not tell any of the parties what the children have said. The ICL will inform the parties if they form a preliminary opinion about what orders or outcomes would be best to promote the child’s interests, after consulting with the child and taking their views into consideration.
Who pays for the ICL?
Legal Aid in the state or territory in which the proceedings are taking place is commonly responsible for arranging the Independent Children’s Lawyer, both in appointing the specific lawyer to act as ICL and in determining costs. However, Legal Aid usually cannot pay all the ICL’s costs and it is highly likely that parties will need to contribute as well.
If you have parenting proceedings before the court and have queries about the involvement of an ICL in your matter or how the proceedings will be determined generally, contact the Family Law Team at Armstrong Legal for advice on your matter.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
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