If you are involved in Court proceedings about the care of your children, you may wonder whether the children should have their own lawyer. In some circumstances, the Court may appoint an ‘Independent Children’s Lawyer’ (an ICL) to provide independent representation for the children. The ICL is not your lawyer, nor are they the other parent’s lawyer.
How does the Court decide to appoint an ICL?
The Court usually considers a number of factors in the appointment of an ICL (outlined in the decision of the Full Court in Re K [1994] FamCA 21), including matters involving:
Allegations of child abuse or neglect;
High levels of conflict between the parents;
If a child has strong views (and their views should be given weight due to their age or maturity);
Allegations of family violence;
Allegations of serious mental health issues; and
Difficult or complex issues.
The Court can appoint an ICL of its own volition, or the parties can apply for the appointment of an ICL. The Legal Aid Commission will then appoint an ICL from within Legal Aid or a private legal practitioner will be appointed. Notwithstanding this, parties may be required to contribute to the legal costs of an ICL’s participation.
What do ICLs do?
The ICL participates in the proceedings as any party would. The ICL can issue subpoenas to the children’s treating medical practitioners and to their schools, for example. The ICL can also issue subpoenas seeking information about the parents.
If the children are old enough, the ICL will likely meet with the children. Having regard to the children’s views, the ICL advocates for the children’s best interests – inside and outside of the Court.
Once appointed, the ICL is involved in each Court event and will actively participate in making sure the appropriate evidence is before the Court. The ICL will have their own position which they deem to be in the children’s best interests. Sometimes, this may be in support of one parent’s application and at other times, it may be somewhere in the middle between competing applications.
The ICL can be involved in general correspondence as the matter progresses and will participate in settlement negotiations outside of Court. As with any party, the ICL must ‘sign off’ on any settlement reached. A matter may be unable to resolve by consent if the ICL does not support the parties’ proposed orders, however the decision is ultimately up to the Court.
If you are unsure about whether your matter would benefit from the appointment of an ICL or if you are thinking of making an application for an ICL, you should consider speaking with a specialist family lawyer about your options. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Anika Buckley