There are many roles and duties that family lawyers may have to undertake throughout their careers and one which can arise is them being asked to act as an Independent Children’s Lawyer (ICL). Invariably, an ICL will be a family lawyer who has several years of experience and crucially, they will also have completed the ICL accreditation program which is recognised across the country.
Each ICL will be a family lawyer appointed by a court under the Family Law Act of 1975. Their primary role is to represent a child and see that their best interests are protected and promoted. Most instances of an ICL being appointed to represent a child are when that child’s parents are excluded from representing their child or unable to. Funding for ICLs usually comes from the Legal Aid Commission, although they can also be privately funded by one or both parents.
Circumstances In Which An Independent Children’s Lawyer Can Be Appointed By The Court
The main circumstances in which a court will appoint an ICL to represent a child include:
- Allegations exist that the child has suffered abuse or neglect
- The parents of the child have significant disputes and a high level of conflict
- A child seems to be alienated from one or both of their parents
- Parents are proposing to separate siblings
- The conduct of the parents has the potential to seriously negate the child’s welfare
- Allegations exist concerning the views of the child and, in particular, where the child is considered mature enough to express those views
- Allegations of family violence exist
- A risk exists that the child in question might be removed permanently from the current jurisdiction where they live
- The child or one or both of the child’s parents has serious mental health issues
- Neither of the child’s parents appears to be suitable representatives of the child
- The matter of the child’s welfare is complex and appears difficult to resolve
The Court will consider that it is appropriate for it to appoint an ICL to represent the child when one or more of the above circumstances exist.
The Main Roles And Obligations Of An Independent Children’s Lawyer
An ICL’s main role is to perform the following duties concerning the child they are representing.
- Arranging for, obtaining, and presenting to the court, all appropriate evidence including that from experts, the child’s teachers, the police, medical facilities, local authorities, etc.
- Enabling the child to take part in any hearings or proceedings concerning them, including those in court, with the proviso that their participation is appropriate for the child’s age and level of maturity.
- Acting as a broker between the child they are representing and the child’s parents or parent’s family lawyer including facilitating negotiations towards settlements if deemed necessary and appropriate.
- Question witnesses, including the parents of the child during court hearings.
The Court And Independent Children’s Lawyers
Once the ICL has conducted all their investigative work and gathered the evidence they need, which may also involve speaking to the child, they will make recommendations to the Court. These recommendations will be what they believe best serves the interests and the welfare of the child they are representing.
It should be noted that, regardless of how much evidence is presented and how strongly the ICL presents their recommendations, the Court is not obliged to accept nor bound to rule in favour of them. However, the Court will carefully consider what has been presented to it and may accept some, most, or all of the recommendations. Based on the child’s welfare, courts take account of all the evidence presented when making rulings, including that of the ICL.