What is an independent children's lawyer?
What is an independent children's lawyer?
The independent children's lawyer (ICL) is a lawyer appointed by the Family Court to represent the child's interests in parenting order cases.
The ICL's job is to look at all of the evidence in the case and tell the Court what they think is in the Best interests of the child.
It is important to remember that the ICL is not your child’s legal representative. This means that although the ICL will tell the Court if your child expresses a particular wish, they do not have to do what your child says.
The ICL will also, where possible, explain to the child how the legal system works and what choices the Court might have to make about the child's future. How much the ICL interacts with the child will depend upon the child’s age and maturity, and how much involvement the child already has with other people such as counsellors and independent experts involved in the case.
How can you get an independent children's lawyer?
If it appears to the Family Court that your child’s best interests should be independently represented by a lawyer, they can make an order that an ICL be appointed.
The Court can make this order either on its own initiative, or if an application has been made by you, your child, an organisation concerned with your children's welfare or any other person.
When will an independent children's lawyer be appointed?
The reasons for appointing an ICL are set out in a 1994 case called "Re K". This case says that the reasons include:
- Where someone has said there has been child abuse
- If the parents cannot agree on any issues
- The child is not speaking to one or both parents
- There are cultural or religious differences affecting the child
- The sexual preferences of one or both parents is likely to affect the child's welfare
- One or both of the parents or another person who is significant in the child's life behaves in a way that is anti-social and may affect the child's welfare
- One or both of the parents, or a significant person, or the child has a significant medical, psychiatric, psychological illness or personality disorder
- Neither of the parents seems to be suitable to look after the child
- The child is mature and has strong views which may change a long standing arrangement (such as who the child lives with or refusing to spend time with a parent or other person)
- One parent wants to move away with the child where this will greatly reduce the time the child spends with the other parent
- It is planned to separate brothers and sisters
- None of the parties has a lawyer
- Where there is an application regarding the medical treatment of a child where one of the parties is not properly managing the child's medical treatment
An ICL is not always appointed in a case where the circumstances are similar to one or more of the above circumstances and there may be other reasons why an ICL might be appointed. Ultimately, the Court will decide whether an ICL is needed in your case.
You should get legal advice as to whether your case may need or benefit from the appointment of an ICL.
Does the independent children's lawyer have to do what the child tells them?
No, the ICL tells the Court what they think is in the Best interests of the child. The ICL will work out what is in the best interests of your child by looking at all of the information that is available.
How does the lawyer work out what is in the child's best interests?
To work out what is in the child's best interests, the ICL will usually talk to the child and other people involved in the child's life like their teachers and doctors. The ICL will listen to what the child wants if the child is old enough to say what that is. However, as this is not the only information they will use to work out what arrangements will be best for the child, the child's views may not be followed.
After a decision is made by the Court the ICL can explain to the child what the decision is and any Court orders that have been made. They can also help the child with any further problems or questions about what has happened in Court. See also Best interests of the child.
What does the independent children's lawyer have to tell the Court?
The ICL has to tell the Court what they think is in the Best interests of the child. They must also make sure that the Court has all the important information about the child's background including the child's views and needs, to help the Court make a decision that will be best for the child.
Who pays for an independent children's lawyer?
Legal Aid WA is only able to fund ICLs in particular circumstances. As a parent, you may be asked to contribute to the cost of an ICL. If you do not qualify for legal aid the Court may order one or both parties to contribute towards the cost.
When will an independent children's lawyer be removed?
A party to the case can apply to have an ICL removed. The Court will only do this in very serious circumstances, which would include where there is evidence that the lawyer:
- is acting against the child's best interests
- is not doing the job properly
- is not making independent decisions, or
- has a conflict of interest.
Can I speak with the independent children's lawyer in my case?
If you have your own lawyer you should get your lawyer to speak with the ICL for you. If you do not have a lawyer you can speak to the ICL yourself. You need to remember that anything that you say to the ICL is "on the record". This means that it will not be kept secret or confidential.
Where can I get more information?
Go to the Best for Kids films on the Legal Aid NSW website. These are two short films about the Independent Children's Lawyer Role. One film provides information for parents and one film is designed for use with children. Please note, that while these films are from the Legal Aid NSW website the content is correct for Western Australian audiences. Versions with WA contacts and referrals will be provided shortly.
For more information on the role of an independent children's lawyer please see the (2013) ICL Guidelines 2013.pdf Guidelines for Independent children's lawyer.
Last reviewed: 21/10/2013