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Understanding the role of an Independent Children’s Lawyer

Gemma Butler

09 Oct 2019

Topics

  • Family Law

When a relationship breaks down and there is a dispute between parties regarding the parenting arrangements of a child, the court may appoint an Independent Children’s Lawyer (ICL). In this article Gemma Butler discusses the role of the ICL and when they are appointed.

Why should an ICL be appointed?

When a child is involved in family law proceedings, determining the child’s best interests is the court’s main concern. However, where there is significant conflict between parties or there have been allegations of family violence, it’s appropriate to have a neutral party represent and act independently on behalf of the child.

What is the ICL’s role?

The ICL’s primary role is to represent the child and present the views and interests of the child in an unbiased and fair manner.

The ICL must ensure the child’s best interests are clearly represented to the court and that the child is the focus of any decision a court is required to make, or any agreement that could arise during proceedings. If the ICL believes there is a particular outcome that will best promote the child’s interest, the ICL must make submissions that the court adopt such an approach.

Impartiality

During the proceedings, the ICL must remain impartial when dealing with other parties. However, their views and opinions must be based on and supported by evidence. It cannot just be their personal opinions. If the ICL feels it’s appropriate, they can also arrange for further evidence, such as family or expert reports to be gathered.

Gathering evidence

In deciding what is in the child’s best interest, the ICL will, when appropriate, meet with the child. This provides the child with an opportunity to express their wishes in a neutral environment. Further, the ICL may request documents from or speak to the child’s school. The ICL may also request documents from various bodies, such as the police, child protection services or government departments. However, the underlying reason for taking this course of action is to identify what outcome is in the child’s best interest.

Ultimately, although parties may not feel as though an ICL is required, if one is appointed, their involvement will ensure that the child’s best interests remain at the heart of all negotiations and court proceedings.

Will the court appoint an ICL to my case?

A court may appoint an ICL in circumstances where there are the following circumstances:

  • allegations of child abuse or neglect
  • allegations of domestic or family violence
  • high levels of conflict between parties
  • significant health issues with either parent or the child
  • significant religious or cultural differences that are affecting the child
  • proposals to separate siblings or where one parent proposes to relocate with the child.

Although an ICL is normally appointed by the court, an ICL may also be appointed upon application by the child, or upon application by an organisation that is concerned with the welfare of the child.

If you believe one of these issues are present in your parenting dispute, it’s important to get advice from a lawyer.

Will I have to pay for the ICL to represent my child?

Normally, Legal Aid ACT (or the relevant Legal Aid in your state or territory) funds the upfront costs associated with the appointing an ICL.

However, the court has the discretion to make Orders that either one or both parties to the dispute pay or contribute to the costs associated with the ICL representing the child. Legal Aid may also seek to recover the costs of an ICL, independent of a Court Order being made. Further, if the ICL requires a family or expert report and the parents do not have their own personal legal aid grants, parents may be required to pay for the reports.

How can we help?

If you have a parenting dispute with your former partner, or are concerned a parenting dispute will eventuate, our Family Law team can advise and guide you about the law and processes that apply after a separation. We are committed to assisting you to reach a resolution in your family law matter as swiftly and cost effectively as possible. Please don’t hesitate to contact us on 02 6285 8033 or by email.