Representation of children in family law proceedings in NSW can take different forms, but at the federal level, the Family Law Act 1975 provides for the possibility of appointing an Independent Children’s Lawyer (ICL). This is a legal practitioner who will represent a child’s interests in parental proceedings. This statutory form of child representation has been further developed by case law, particularly in the 1990s, and notably in Re K (1994) and in P and P (1995). More guidance about the role has also been provided by National Legal Aid Guidelines.
In essence, the role of the ICL is to act impartially and form an independent view about what orders are in the best interests of the child in the proceedings based on the available evidence.
When will an ICL be appointed?
The Court has the discretion to appoint an ICL ‘if it appears to the court that the child/children’s interests ought to be independently represented’. The case of Re K (1994) provided some guidance as to the matters the Court should consider when exercising its discretion. These matters arise if the case involves:
- allegations of child abuse, whether physical, sexual or psychological;
- high levels of conflict between the parents;
- the child being apparently alienated from one or both parents;
- allegations of domestic or family abuse;
- significant issues of cultural or religious differences affecting the child;
- situations where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child’s welfare;
- conduct by one or both of the parents, or some other person having significant contact with the child, seems to be anti-social to the extent that it seriously impinges on the child’s welfare;
- issues of significant medical, psychiatric or psychological illness or personality disorders in relation to either party or other persons having significant contact with the children;
- situations where, on the basis of the material filed by the parents, neither seems a suitable custodian;
- a child of mature years expressing strong views, the result of which would involve changing a long-standing custodial arrangement or complete denial of access to one parent;
- one of the parties proposing that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes, exclude the other party from the possibility of access to the child;
- proposals that would separate siblings;
- parenting cases where neither party is legally represented;
- applications in the Court’s welfare jurisdiction relating, in particular, to the medical treatment of children where the child’s interests are not adequately represented by one of the parties.
What are the expectations of an ICL?
The case of P and P (1995) stated that an ICL should:
- act in an unfettered way in the best interests of the child;
- act impartially and make submissions in the best interests of the child;
- inform the Court of the child’s wishes;
- arrange collation of relevant evidence concerning the child’s welfare;
- test by cross examination, where appropriate, other evidence presented;
- minimise as far as possible any trauma to the child;
- facilitate a resolution to the proceedings to the extent that doing so is still in the child’s best interests;
- act on the basis of the evidence rather than a personal view or opinion of the case.
In order to form a view about what orders are in the best interests of the child, the ICL might, for example, meet with the child, issue subpoenas to their school and doctors, speak to their teachers, engage independent experts and assist with negotiations between the parties.
Determination of what is in a child’s best interests
In determining the best interests of a child, the legislation requires the Court to pay regard to two main considerations:
- the benefit to the child of having a meaningful relationship with both parents; and,
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In addition, the Court can take into consideration any relevant factors such as any views expressed by the child, the child’s relationship with each parent and other persons such as grandparents and evidence of how the parents have fulfilled their parental duties.
Role of an ICL
Depending on the circumstances, not every matter will require an ICL. However, where appointed, the role of the ICL is to represent the best interests of the child. This largely revolves around facilitating the participation of the child in proceedings through the gathering of evidence, case management and exploring possible options.
The ICL is there to form an independent view based on the available evidence. The ICL is not the child’s legal representative and is not bound by a child’s instructions. However, they can meet the child, where appropriate so that they can express their views.
In NSW, when the Court has made an order about appointing an ICL, the request is referred to Legal Aid, who will arrange the appointment of a suitably qualified ICL. The ICL is funded by Legal Aid though they may request a contribution from the parties to the proceedings in some circumstances.
The appointment of an ICL satisfies Australia’s obligations under the UN’s Convention on the Rights of the Child, which provides for their right to participate in proceedings relevant to their care and to have their views known in judicial proceedings involving them.
Contact our Family Lawyers in Sydney, NSW
Szabo & Associates Solicitors are experienced in all aspects of family law. If an ICL is involved in your parenting matter, knowing what they can and cannot do for your child is important. If you need help with your parenting matter, please contact us on {{CONTACT_NUMBER}} or fill in the online contact form.