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What is an Independent Children’s Lawyer?

What is an independent children’s lawyer?

In a court case concerning children, the paramount consideration is making a decision that is in the best interests of the children. Sometimes, the Court needs help in determining what the best interests of the child are from an impartial third party. In these cases, the Court may appoint an Independent Children’s Lawyer (‘ICL’) to make recommendations.

What is an ICL?

An ICL is an independent, impartial party to family law proceedings.

As children are not allowed to attend court, sometimes an ICL will be appointed to represent the child’s best interest in a family law matter. A Court will appoint an ICL when it needs to hear an independent assessment about the child/ren’s best interests.

An ICL will carefully consider the evidence of both parties and will make a recommendation to the Court about what they believe to be in the best interests of the child.

Does an Independent Children’s Lawyer have specific training?

ICL’s must meet specific training requirements before they are allowed to become ICL’s.

They need to complete specialised training programs about the complexities of the role and have at least 5 years’ experience doing family law work in cases involving children’s issues. These requirements are in place to ensure ICL’s have the experience necessary to provide a reliable and valuable recommendation to the Court.

You can learn more about ICL training requirements on the government’s ICL website.

When is an ICL usually appointed?

An ICL can become involved in a family law matter when the Court makes an order to do so.

A Court may make an order for an ICL to become involved in certain cases including:

  • where there are older children expressing clear views;
  • where the parents are involved in a high conflict dispute;
  • where there are allegations of family violence, abuse, mental health issues in relation to the children or parents:

Can I request an ICL be appointed for my child?

An ICL can become involved in a family law matter when the Court makes an order to do so.

A Court may make an order for an ICL to become involved in the following circumstances:

  1. The Court thinks it is necessary for the child’s best interests to be independently represented;
  2. The child makes an application for an ICL;
  3. A person concerned about the best interests of the child makes an application (e.g. other family members such as a grandparent); or
  4. An organisation concerned about the best interests of the child makes an application (e.g. child protection, welfare agency or school).

As a person concerned about the best interests of your child, you can make a request to the Court that an ICL be appointed to your matter.

Does the ICL have to talk to my child?

The Court can make an order for the ICL to find out what your child’s views are.

However, the Court will only do so when it is appropriate. For example, it may be inappropriate for the ICL to talk to your child depending on their age, maturity level or other special circumstance.

If your child does not want to talk to the ICL or express their views, they are not required to do so. No-one can make your child speak to the ICL if they do not want to. In these cases, the ICL will determine what they believe to be in the best interest of your child based on the evidence presented to them, but not by talking with your child.

What if the ICL disagrees with what my child says?

It is important to recognise that the role of an ICL is different to that of the child’s legal representative. This means that the ICL does not have to follow instructions given to them by the child. They have the option to disagree with the views expressed by the child where they believe what they are saying is not in their best interests.

The ICL’s job is to listen to the views of the child (where appropriate) and provide an independent assessment of what they believe to be in the child/ren’s best interests. This means the ICL can make a recommendation to the Court that goes against the child’s wishes, where the ICL believes the child’s wishes are not in their best interests.

Does the Court have to follow the ICL’s recommendation?

Like all material submitted in a Family Law matter, the Court will carefully consider the ICL’s recommendation. The ICL is appointed to provide an impartial recommendation on what is in the best interests of the child/ren, but the Court is under no obligation to follow this recommendation.

Is what my child says to the ICL confidential?

The ICL is under no obligation to disclose anything they have discussed with your child to the Court, nor can the Court or the parties require the ICL to disclose.

That being said, the ICL may choose to disclose to the court any information that they believe is in your child’s best interests. even if this disclosure goes against your child’s wishes.

How much will an ICL cost?

ICL’s are funded by state and territory Legal Aid Commissions. If you and the other party are not legally-aided (meaning you do not have a grant of funding from Legal Aid), you are required to pay a lump sum contribution amount for the cost of the ICL.

Currently, the average cost for an ICL is $3,342.50 for each party in a Federal Circuit Court matter and $4,782.50 for each party in a Family Court matter.

Get help

If you’re unsure whether an ICL would be beneficial to your matter, or if an ICL has been appointed to your matter and are unsure of next steps – we can help!

Get in touch with one of our family lawyers for a free initial discussion to find out what your options are.

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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Emera Smith.

Get in touch with the author:
Jane Holford

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