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The Independent Children’s Lawyer in Family Court proceedings

An Independent Children’s Lawyer (“ICL”) is a family lawyer with additional specific qualifications who may be appointed to represent a child’s best interests in Family Court proceedings.  Whilst the ICL is concerned to hear what the parties will have to say, their primary focus is to try to obtain the best possible outcome for the child, rather than any of the parties.

An ICL is appointed by a judicial officer at the Court, usually on the application of one of the parties or of the Court’s own volition.  A request is then made to Legal Aid WA who will review their panel of ICLs and allocate one to the case if appropriate.  Parties do not have any input as to who may be allocated as ICL in each case.  Although Legal Aid will initially fund the cost of the ICL, the parties may be asked to contribute to those costs, subject to each person’s capacity to do so.

The guidelines about whether or not an ICL should be appointed are set out in a case called Re K (1994) FLC 92-461.  These include cases where:

• there are allegations of child abuse, whether physical, sexual or psychological;*
• there is an apparently intractable conflict between the parents;
• the child is apparently alienated from one or both of the parents;*
• there are real issues of cultural or religious difference affecting the child;*
• the sexual preferences of either or both parents are likely to impinge upon the child’s welfare;
• the conduct of either or both parents may seriously impinge on the child’s welfare;*
• there are significant medical, psychiatric or psychological illness for the child or parent(s);*
• neither parent seems to be a suitable custodian for the child;*
• an older child is expressing views that, if granted, would change a long-standing arrangement;
• there is a risk that a child will be permanently removed from the jurisdiction;
• it is proposed to separate siblings;
• none of the parties are legally represented;
• the case relates to medical treatment of a child.

The categories marked “*” are the more common types of cases where an ICL may be appointed.        

The role of the ICL is essentially to form a view as to the child’s welfare based on all the material that has been presented and/or the ICL has been able to obtain.  They must be impartial and make submissions based on the best interests of the child.  That is not necessarily to act on the instructions of the child, but if the child has expressed some wishes, the Court should be informed of them.

The ICL will usually read all of the documents filed by the parties to the proceedings.  They may also issue subpoena to obtain documents from external agencies, such as medical professionals, children’s schools and the police.  The ICL may consider it appropriate to organise for a “Single Expert Witness” (“SEW”) to meet with the parties and the children and to prepare a report and present recommendations.  The SEW is usually either a social worker, clinical psychologist or psychiatrist, depending on the case.

The ICL will help to ensure that all of the relevant material is presented before the Court so that the judicial officer has everything they need to make the best possible decision for the child in all of the circumstances.

Often, the ICL will help parties to try to negotiate arrangements for the children which can then be turned into Orders at the Family Court.

The ICL is impartial, although sometimes they may agree more with one parent than the other.  Any correspondence to the ICL must be copied to the other parties in the case to assist in maintaining the ICL’s impartiality.

The role of the ICL is an extremely important one which usually assists in the running of a case.

Our lawyers are highly skilled in providing advice and guidance in these matters. Why not call us today on (08) 9325 8675 or email us via our Contact Page and arrange an interview with one of our professional staff.