An Independent Children’s Lawyer (“ICL”) is a Solicitor appointed by a Judicial Officer in the Federal Circuit and Family Court of Australia in certain parenting cases as a representative of the child. Their prima facie role is to assist the court to reach a decision which is in the “best interests of the child.”
ICLs have also previously been referred to as “Child Representatives”.
When will an ICL be appointed?
An ICL will not be appointed in each and every parenting case before the court. The court will usually only appoint an ICL upon an application by one of the parties, or on their own initiative if one ore more of the following circumstances exist:-
- Where there are allegations of child abuse; either physical, sexual or psychological
- Where there is an apparently intractable conflict between the parents.
- Cases where the child is apparently alienated from one or both parents.
- Where they are real issues of cultural or religious differences affecting the child.
- Where there are issues of significant medical, psychiatric illness or personality disorder in relation to either parent or a child.
- Where the child is mature and has strong views, which may change a long-standing arrangement (such as who the child lives with or refusing to spend time with a parent or other person).
- In cases where one parent seeks to relocate, which will greatly reduce the time the child spends with the other parent.
- Where it is proposed to separate siblings.
If any of the above circumstances exist in the parenting case it is not inevitable that the court will appoint an ICL. It will ultimately be at the discretion of the Judicial Officer to decide whether the appointment of an ICL is appropriate.
What does an ICL do?
The ICL’s role at all times is to assist the court in the preparation and determination of the matter ensuring that all proper evidence is put before the Court that is relevant to the determination of the matter. The ICL must form an independent view and is not the child’s solicitor.
In deciding upon orders, the ICL will usually attend to the following: –
- Consider all the filed affidavits.
- Examine any subpoenaed documents, including issuing their own subpoenas.
- Find out the child’s wishes and the reasons why.
- Talk to any relevant people, including teachers, doctors or psychologists.
- Arrange random testing if there are allegations of drug or alcohol abuse.
- Obtain a psychiatrist assessment of the parent/s or the child.
In difficult cases the ICL may also seek an order from the court that a Family Report be conducted. This is not the ICL’s report, but is prepared by a social worker or a psychologist. The information is obtained by interviewing the people concerned in the matter. It will include an assessment of the parents, any significant family members and the child or children subject to the proceedings. It will include recommendations for arrangements that will best meet the future care, welfare, and developmental needs of the child or children.
Who pays for the ICL?
The ICL is most often employed and funded by the Legal Aid Office. In circumstances where one or both of the parties are in a sound financial position, then either one of the parties may be ordered by the Court to contribute to the costs of the ICL.
