Understanding the role of an Independent Children’s Lawyer

 In Family Law

In complex family law matters, the Court will often appoint an Independent Children’s Lawyer (“ICL”) to advocate for the best interests of the children involved.

An ICL is often an experienced lawyer who specialises in family law.  The principal role of an ICL is to provide an independent opinion to the Court about future care arrangements of the child based on what he or she considers to be in the best interests of the child.

When will the Family Court appoint an ICL?

The Court may appoint an ICL in a variety of circumstances, including situations where:

  • There are allegations of family violence, child abuse or neglect;
  • There is or has been prolonged and contracted conflict between the parents;
  • There is a parent or child with serious medical or mental health issues;
  • Neither of the parents are legally represented;
  • There is a risk that a child will permanently be removed from the city or town in which they reside; 
  • There are other combinations of difficult or complex issues.

While the Court has the discretion to appoint an ICL, it may also do so after considering an application from one of the parents or child, or where an independent organisation deems it necessary to have an ICL appointed. 

What is the role of an ICL?

In determining the best interests of the child, an ICL will have access to any documents filed by the parents in the proceedings.  He or she will then gather their own information regarding the child’s current situation by doing the following:

  • If the child is considered to be mature enough in age, by speaking with the child about their views or concerns regarding their care arrangements;
  • Speaking to the family consultant and other relevant people, including teachers and doctors involved with the child; and
  • Examining subpoenaed documents.

The ICL must remain independent from the parties and present his or her findings of what they consider to be in the best interests of the child in future care arrangements.  The ICL will make submissions, present evidence in Court and cross-examine witnesses in Court proceedings.

Does the Court have to adopt the ICL’s recommendations?

While the ICL will submit to the Court his or her own recommendations based on their own observations as to what they consider to be in the child’s best interests, the Court is not bound to grant Orders in line with those recommendations. 

Rather, the Court will consider the recommendations and use its discretion in deciding whether to make an Order in line with the ICL’s submissions.

What next?

Contact our office today on (08) 9207 1866 to make an appointment.

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