The Role of Independent Children’s Lawyers

Children’s best interests and welfare are the court’s main considerations when dealing with contested parenting matters.

In some cases, an independent children’s lawyer (ICL) will be appointed by the court. The role of the ICL is to represent the child’s best interests to ensure that this remains the primary focus of parenting decisions.

How can an ICL be appointed?

• By the court, if it is evident that the child’s interests should be independently represented; or
• On the application of:
  • the child;
  • an organisation concerned with the child’s welfare; or
  • any other person (e.g., one of the parties).

ICLs are often appointed in matters where there is significant conflict between the parties, or other complex circumstances exist that affect the child’s welfare, such as allegations of family violence, drug use or mental health concerns in relation to the parties and/or the children.

What does the role of the ICL involve?

The ICL makes recommendations to the court based on his or her independent view as to parenting arrangements that are in the child’s best interests. If the ICL is of the view that a specific arrangement should be adopted, he or she has a duty to express this to the court.

The ICL will not favour either party in the proceedings, nor do they take a one-size-fits-all approach. Their role is to consider all relevant and available information, and to impartially assess the circumstances of each individual case.

Once the ICL makes their submission to the court, it is up to the Judge to make orders resolving the relevant parenting issues. The court is under no obligation to follow the ICL’s recommendations.

How does the ICL establish what is in the child’s best interests?

The ICL may meet with the child to ascertain his or her views about a matter to which the court proceedings relate. If the child expresses a particular view, the ICL has a duty to present it to the court. They are not, however, the child’s legal representative and are not required to act on the child’s instructions. The ICL will ultimately make an independent determination regarding the child’s best interests.

Part of the ICL’s role is to analyse expert reports and other documents relevant to the child’s welfare, including family assessment reports, medical reports, documents relating to the child’s schooling, and documents prepared by organisations such as the Department for Child Protection or the South Australian Police. Any significant issues arising from the ICL’s consideration of these documents will be presented to the court.

The ICL may also speak to teachers, school counsellors, psychologists and others who can provide information on the child’s welfare to assist the ICL in forming an independent view.

ICLs are specially qualified to deal with matters involving a range of highly complex issues and have an important role in safeguarding the bests interests of children in parenting decisions.

If you require assistance in relation to any family law enquiry, please contact Christopher Mason on +61 8 8210 1231 or cmason@normans.com.au.