Independent children’s lawyers (ICLs) are appointed by the Family Court to advocate for children caught in the cracks when parents separate. Private lawyers who undertake ICL work know full well that the grants they are getting will bear no affinity to the work they have to do but do the job regardless, with the hope that they can recommend something to the Court that will ultimately make a difference for the children.
Ramsden Family Lawyers Partner and Director Reece Ramsden discusses this vital but drastically underfunded role.
Background:
When it comes to ICLs, private family lawyers do many hours of unpaid work to advocate for children.
Children involved in family law proceedings, whether in the family Court and federal circuit Court, do not attend hearings.
The Court is permitted to appoint an ICL under the Family Law Act when it deems it necessary to secure an “independent representation of the child’s interests”.
The Court can make the order on its initiative or after an application by the child, an organisation concerned with the welfare of children or another person.
Role of an ICL:
Children cannot attend Court or represent themselves in family Court proceedings. Based on the available evidence, their voice may be heard through an ICL who forms an independent view of the child’s best interests,. It is the ICLs role to represent the child’s best interests and not be obliged to represent the child’s wishes – including disclosing information obtained from the child that the ICL considers fundamental to the proceedings.
The ICL presents their findings to the Court regarding the child’s welfare and views. ICLs are involved in collecting vital information from third parties such as:
- medical practitioners and welfare agencies
- school records from educational institutions
- police records
- other information that may be relevant to the proceeding
How does an ICL get involved in proceedings?
An ICL can be appointed by the Court at the request of either party or the Court’s own volition. Usually in circumstances where one or several ‘factors’ are present. The Court essentially forms the view that the child’s interests ‘ought to be independently represented’ as per s 68L(2) Family Law Act 1974 (Cth) (‘FLA’).
The factors are referred to as the ‘Re K factors’ after the case of the same name. They set out a non-exhaustive list of circumstances when the Court may appoint an ICL (Re K (1994) FLC 92-461).
When is an ICL appointed?
The Full Court in Re K [1994] FamCA 21 outlined the criteria for appointing an ICL. This criterion covers:
- alleged child abuse
- unsuitability of either parent
- parental conflict
- child removal
- parental alienation
- proposal to separate siblings,
- cultural/religious differences
- parents’ sexual preference
- particular medical procedure for the child
- anti-social conduct of the parent
- where neither parent is legally represented.
How is an ICL appointed?
The Court makes an order for the appointment of an ICL. It also requests the Legal Aid Commission to appoint an ICL to the case. Legal Aid Commissions each have in-house ICLs operating panels of private legal practitioners representing the child in family law proceedings.
Solicitors who work as ICLs must complete specialist ICL training, which is run through National Legal Aid, and must have significant experience in family law.
The Parents equally pay the cost of ICL representation
What does an ICL do?
An ICL may carry out several tasks to gather evidence to provide to the Court and form a position about what orders are in the child’s best interests. The evidence includes, but is not limited to:
- meeting with a child (if appropriate) and giving the child an opportunity to express their views without pressure or influence from other people
- issuing subpoenas: this may include a child’s school and the child’s treating doctors
- reviewing the relevant material, including the subpoenaed material and any reports, as well as bringing the Court’s attention to information pertaining to the issue
- engaging with the child’s school, which may include speaking with teachers, the principal and counsellors
- liaising with family consultants and alternative relevant experts
- organising arrangements to engage independent experts, which may be based at the Court or externally, to cultivate reports
- assisting with negotiations between each party and coordinating family dispute resolution mediations
As is clear from the list above, the ICLs role is a varied role that enables the child’s participation in the proceedings. It also includes gathering evidence to ensure pertinent information and matters are before the Court, assisting the parties in reaching a consensus, and abetting the Court from a case management standpoint.
An ICL needs to be malleable to the matter and, in some circumstances, will need to be more proactive because of the nature of the issue. For instance, where parties in a case are self-represented, the ICL must be proactive to ensure relevant evidence is brought before the Court. Subsequently, self-represented litigants are less likely to be able to convene such evidence to put before the Court, as was the case in Duffy v Gomes (No.1) [2015] FCCA 1121.
In particular, ICLs often have a significant role in helping parties to attempt to resolve matters using alternate dispute resolution means and through negotiation between the parties. In such talks, the ICL is meant to act as an ‘honest broker’ on the child’s behalf. This part of the ICL role is understated.
An ICL will attentively evaluate and consider all the evidence presented to the Court and form a recommendation of what orders they think are in the child’s best interests. Notably, the ICL, in carrying out their work, also must minimise the trauma that may be imposed upon the child due to the proceedings (see s 68LA (5) FLA).
Can an ICL be discharged or removed?
Unless an ICL has failed in their professional role, parent/s simply disagreeing with the views of an ICL cannot remove the appointment.
Ramsden Family Lawyers – we can help families resolve conflict and protect the best interests of children
Ramsden Family Lawyers are a dedicated team of family lawyers who practice exclusively in this complex area of law. Our team are well versed in handling child support, parenting disputes, property disputes and spousal maintenance, divorce applications, and family and domestic violence-related matters.
If you need advice regarding child support payments, contact us, and our dedicated family lawyers can help you negotiate the terms of the arrangement and document binding agreements. It is our focus to protect the best interests of the children and to resolve disputes quickly and effectively so that all parties can move on with their lives peacefully.
Posted in: Child Support, Divorce, Latest News, Parenting
January 27 2023
