Blog post by Meroë Kuhl
When is an ICL appointed and for what reason?
Children rarely give evidence in proceedings and a judge will not ordinarily see or speak to the children. So, how are children’s views expressed to the court?
One way is via a family assessment and report, which involves the parties and the child attending upon a child psychologist who will provide recommendations to the court.
The other is the appointment by the court of an independent children’s lawyer (‘ICL’) who will independently represent the child’s interests and help the court decide what arrangements are in the best interests of the child. The best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision making about the proceedings, however this does not mean that the child is the decision maker. The ICL does not act on instructions from the child and, in this sense, is not the child’s lawyer.
The role of the ICL is provided by section 68LA of the Family Law Act 1975 (Cth). An ICL is usually appointed in a matter where:
- there are allegations of abuse of the child;
- there is intractable conflict between the parties;
- the child is alienated from one or both parties;
- there are cultural and religious differences between the parents;
- there are concerns about the mental or physical illness or personality disorder of either parent;
- neither party seems to be a suitable residential parent for the child;
- a child of mature years indicates that they do not wish to have contact with one parent;
- there is a threat of removal of the child from the jurisdiction;
- the determination of the case may involve separation of siblings; or
- neither party is represented.
The ICL is to ensure that all evidence that is relevant to the best interests of the child is put before the court. Particularly, the ICL is expected to be alert to any risk of harm to a child that may arise from the other parties, or the physical environment in which the child may be and the ICL should ensure that as far as reasonably practicable, evidence concerning family violence and abuse that is relevant to the best interests of the child is put before the court.
The ICL will usually do this by:
- collecting information about the case and the children – it is expected the ICL will meet the child or children
- encouraging the parents to put the child first and to make an agreement that will meet the child’s needs where possible
- asking the court to order a family assessment report
- giving information to the court, including asking witnesses to give evidence
- asking witnesses questions, including the family consultant (if they have been involved in a court event), teachers, doctors, psychologists or counsellors
- telling the court how the law applies to the disagreement in the family.
Importantly, the ICL may seek any orders s/he considers to be in the best interests of the child and may choose to support or oppose the making of orders proposed by one or another. The ICL will provide their recommendation to the court. The judge will then consider the views of the ICL together with all the facts and views given by all of the parties and the child in forming a decision.
If an ICL makes a recommendation early in proceedings, the parties can consider the same and potentially reach an agreement without the need for protracted argument.
Usually, the state Legal Aid body will fund the services of a court-appointed ICL but may ask the parties to pay part of those costs and the costs are usually paid at the end of the matter.