An Independent Children’s Lawyer (ICL) represents a child’s best interests.
The Family Court can appoint an ICL under section 68L of the Family Law Act 1975, or on the application of a child, an organisation concerned with the welfare of children, or any other person, to represent and promote the best interests of a child in family law proceedings.
An ICL is usually appointed by the Court upon application by one of the parties where one or more of the following circumstances exist:
- there are allegations of abuse or neglect in relation to a child
- there is a high level of conflict and dispute between the parents
- there are allegations made as to the views of a child, and the child is of a mature age to express their views
- there are allegations of family violence
- serious mental health issues exist in relation to one or both of the parents, or the child, and/or
- there are difficult and complex issues involved in the matter.
What is the role of an ICL?
ICLs are obliged to consider the views of the child, but ultimately provide their own, independent, perspective about what arrangements or decisions are in the child’s best interests.
The Family Law Act 1975, in Section 68LA, with regard to the role of the ICL states:
When section applies
(1) This section applies if an independent children‘s lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children‘s lawyer
(2) The independent children‘s lawyer must:
(a) form an independent view, based on the evidence available to the independent children‘s lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children‘s lawyer believes to be the best interests of the child.
(3) The independent children‘s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4) The independent children‘s lawyer:
(a) is not the child‘s legal representative; and
(b) is not obliged to act on the child‘s instructions in relation to the proceedings.
Specific duties of independent children‘s lawyer
(5) The independent children‘s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children‘s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court‘s attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the independent children‘s lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court;
any information that the child communicates to the independent children‘s lawyer.
(7) The independent children‘s lawyer may disclose to the court any information that the child communicates to the independent children‘s lawyer if the independent children‘s lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
National Legal Aid has published a set of Guidelines for Independent Children’s Lawyers about what an ICL should do to fulfil their role and responsibilities, and how they should represent and promote the best interests of a child in family law proceedings. The Guidelines are endorsed by the Court and provide useful guidance on all aspects of the role of the ICL.
What information does an ICL consider to determine what is in the child’s best interests?
The ICL has numerous options when determining what is in a child’s best interest. They may:
- meet with the child, unless the child is under school age, or there are exceptional circumstances
- speak to the child’s counsellors, school teachers and principals
- examine documents from organisations such as schools, child welfare authorities, or the Police
- examine medical, psychiatric and psychological records of the child and their parents
- question witnesses, including parents and experts, at the final hearing, and/or
- make arrangements to obtain independent expert evidence
Who pays for an ICL?
It’s important to realise that although in many situations the ICL is funded under a Legal Aid scheme established under Commonwealth, State or Territory laws, it’s not a “free” service. From a court’s perspective, an ICL is presumed to be unfunded (unless privately funded) and the courts are generally inclined to order parties to contribute to the ICL’s costs.
When a party feels that ICL is biased, what can you do?
Discussing the role of ICL, J O’Reilly in KINGLEY & ARNDALE (NO. 2) [2010] FamCA 968 made the following observation at ( 30-33)
Murphy J in Knibbs & Knibbs [2009] FamCA 840 at [40] said that he did not necessarily agree with the last of these statements, that is, that it is only in cases of actual rather than perceived impartiality that such consideration should be given, but he did not elaborate on this.
For my part, respectfully I am in agreement with Murphy J that is it not only in such cases, that is, cases of actual rather than perceived impartiality that such consideration should be given for the reason that justice must not only be done but be seen to be done in the proper administration of the justice system. This is the underlying philosophy of the apprehended bias principle. Thus, in my view, it is appropriate to consider the removal of an independent children’s lawyer if actual bias be demonstrated, or apprehended bias. It is fundamental, however, that even in cases of alleged apprehended bias, some actual conduct of the person sought to be impugned be identified, and that there be a finding that such conduct, in the view of the objective bystander, realistically could give rise to the opinion that the person is not impartial.
In this regard, the authorities concerning apprehended bias in judges are analogous, and it is relevant to refer to High Court authority on the point.
In Johnson & Johnson (2000) 201 CLR 488 at [11]-[14], the majority made clear that the test for the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial or unprejudiced mind to the resolution of the question the judge is required to decide. By analogy, I would interpolate that in relation to an independent children’s lawyer the appearance of bias may be tested by whether a fair‑minded lay observer might reasonably apprehend that the independent children’s lawyer might not bring an impartial or unprejudiced mind to the task of independently representing a child. In Johnson, their Honours made clear also that the hypothetical fair-minded lay observer of conduct is postulated in order to emphasise that the test is objective. See also Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8].”
If one party feels that ICL appointed in the matter can no longer be seen as an impartial and honest broker in ICL role, then an application can be made to the court for that ICL to be discharged from the matter.
If you are in such a dilemma, please contact our office to speak with our Principal, who is an experienced ICL himself and has over 24 years experience in Family Law.
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