What is an Independent Children’s Lawyer?

KEY TAKE-OUTS:

• An Independent Children’s Lawyer is a legal representative that has been appointed by the Federal Circuit and Family Court of Australia to represent the best interests of a child in a parenting matter.
• An ICL is usually appointed when there have been complex allegations of the child being subjected to, or exposed to family violence, abuse, neglect or a high level of conflict between their parents.
• The Judicial Registrar or Judge places great weight on the perspective and recommendations of the ICL when making Parenting Orders.

What is an ICL in family law?

An Independent Children’s Lawyer (also known as an ‘ICL’) is a legal representative that has been appointed by the Federal Circuit and Family Court of Australia to represent the best interests of a child in a parenting matter.

When is an independent children’s lawyer appointed?

An ICL is usually appointed when there have been complex allegations of the child in family law proceedings being subjected to, or exposed to family violence, abuse, neglect or a high level of conflict between their parents. An ICL is also appointed when one or both of the parents may suffer from severe mental health issues which affects their parental capacity to care for the child.

What does an Independent Children’s Lawyer do?

An ICL is required to provide an independent perspective on the parenting arrangements proposed by the by the parents and make an assessment as to whether the proposed orders align with the child’s needs, interests and safety. The views and recommendations of an ICL must be supported by admissible evidence – it cannot be based purely from the ICL’s subjective opinion.

An ICL has the authority to arrange or request necessary evidence to formulate their opinion about what is in the best interests of the child. This may include seeking expert evidence, issuing subpoenas, examining school, medical and/or psychologist reports, directly liaising with the child, communicating with stakeholders that provide support to the child and questioning witnesses.

The ICL is required to analyse and assess such reports or evidence to make recommendations to the Court about any matters or decisions that would significantly impact the child’s best interests. The Judicial Registrar or Judge places great weight on the perspective and recommendations of the ICL when making Parenting Orders. However, the Court is not bound to exercise or implement the recommendations made by the ICL when making Parenting Orders.

The ICL can meet with the child to provide the child with an opportunity to express their views and wishes about their best interests without being influenced by external third parties. Thus, the ICL can advocate the child’s wishes if the child is old enough or emotionally mature to do so.

This is particularly helpful during parenting negotiations as the ICL can provide the child’s views in an honest, impartial and facilitative manner to the parties. The presence of the ICL enables the child to have a ‘voice’ in the proceedings.

Is the Independent Children’s Lawyer the child’s legal representative?

The ICL does not act as the child’s legal representative and does not take instructions directly from the child. The ICL merely acts as the child’s spokesperson and advocate during the proceedings.

Who pays for the Independent Children’s Lawyer’s costs?

The appointment of an ICL is usually funded by the Legal Aid Commission, however it is possible for the ICL to be privately funded by one or both pf the parties.

Removal of Independent Children’s Lawyer

It is unlikely that an ICL will be removed from proceedings if one or both of the parties make a complaint about the ICL’s recommendations or simply disagree with the ICL’s views.  However, an ICL may be removed from a case in circumstances where the ICL fails to meet their professional responsibility and practice standards.

Please do not hesitate to contact our family law team to make an appointment to discuss your parenting matter today.