If you are going through a difficult parenting case, you may have considered hiring an independent children’s lawyer (ICL) for assistance.
In situations which involve allegations of abuse or violence or high degrees of parental conflict, the Family Law Act 1975 states that an ICL may be appointed in order to serve the young person’s best interests.
When an ICL may be appointed
An independent children’s lawyer may be appointed by the court if they feel it is necessary; however the young one, or an individual or organisation worried about their welfare may also request one.
Some of the reasons why an ICL might be appointed include:
- There are allegations of violence, neglect or abuse (psychological, physical or sexual) in relation to a young person;
- There are high levels of conflict between the parents;
- The young person is of a mature enough age to express their personal views;
- There are significant mental or physical health issues involved;
- Both parents are considered unfit for the young person to live with;
- There are complex and challenging issues involved; or
- There has been a threat to separate siblings or relocate with the young person, thereby denying access to the other parent.
What an ICL does
The main role of an independent children’s lawyer (outlined in section 68LA in the Family Law Act) is to give an unrestrained view of what arrangements they believe will be best for the young person. While they can help the involved parties reach a settlement, they should be totally impartial when working with other parties in order to maintain the best interests of the young one, and can only work to the extent that they are dealing with the young person’s best interests.
An ICL’s opinions should be supported by proper evidence rather than their own personal views. Things like documents and reports should be assessed in order to bring the court’s attention to issues which may affect the best interests of the young person. An independent children’s lawyer can also organise to get additional evidence, such as through contacting expert witnesses.
Does the ICL take orders from the young person?
An independent children’s lawyer does not follow the young person’s instructions, nor are they their legal representative. An ICL does have a duty to make sure that the court fully understands the young person’s views regarding matters related to the case. However, an ICL is able to make decisions and recommendations that go against the young person’s expressed opinions or desires if they believe it is not in their best interests. An ICL should tell the young person that they are planning on going against their expressed wishes and ensure that any potential trauma they experience is minimised.
It is usually advised for an independent children’s lawyer to involve the young person in the decision-making process where possible. However, an ICL should assess several factors when considering how much weight to give the young person’s wishes and opinions, such as their age, emotional state and desired level of involvement.
Determining “best interests”
A great amount of information is considered when determining the best interests of a young person. This includes the young person’s views and desires, information provided by school teachers or counsellors, documents provided by government departments or police, medical records, and a family report written up by a family consultant. An independent children’s lawyer may analyse and question this information if needed.
Discharging an ICL
Any party involved in the parenting case is allowed to apply for the removal of an ICL, however courts tend to be reluctant to approve this application. The court will consider discharging an ICL if, for example, they have a conflict of interest, lack professionalism, or act against the best wishes of the young person. An independent children’s lawyer may voluntarily request a dismissal from the court if they believe the young person no longer needs them, or if their relationship has broken down irretrievably.
How to pay for an ICL
Legal Aid may cover the costs of an independent children’s lawyer under certain circumstances, although the parties generally have to contribute, too. Check with the appropriate organisation in your state or territory to find out more about how to cover the costs of an ICL. Get in contact with us for more information.