In scenarios that involve the Family Court which involve a child, in addition to any family lawyer who may be representing the parents or other individuals, the court may rule that an independent children’s lawyer should be appointed.
An independent children’s lawyer (or ICL for short) has the main responsibilities to act on behalf of the child, and as with any situation that reaches the Family Court, to ensure that the best interests of the child are being upheld and represented. In many cases, they act completely independently of the child’s parents and their own family lawyers.
This can often occur when the court is considering issues such as domestic violence, or when the child’s parents are in complete disagreement as to the welfare of the child, which can often happen after a divorce.
The legal framework under which ICLs are appointed comes from the 1975 Family Law Act, and in particular Section 68L. This provides for a court to order that an ICL be appointed if it feels that a child’s interest would be best served by doing so.
It is also possible for outside agencies, or individuals to apply to the court for an ICL to be appointed on behalf of a child. This could be the child’s school, or a local children’s charity for example. It could also be a relative who feels the child requires legal representation with regards to matters relating to their parents mistreating them.
Some of the specific reasons why an application or an order for an ICL may be made include:
Alleged physical, psychological, or sexual abuse
Alleged domestic violence
Where the parents are in severe conflict with each other
Religious or cultural differences
Parents’ anti-social behaviour
Separation of siblings
There will also be a just cause to appoint an ICL to represent a child when it is clear that neither parent is deemed to be suitable for the child to live with, or where there is concern over the child’s welfare with regards to a parent’s sexual preferences.
While the overall principle of appointing an ICL is to represent the child’s best interests, how that is actually done speaks to the role that an ICL has. They need to provide independent opinions to the court with regards to any arrangements or decisions that are made affecting that child.
When dealing with other interested parties in any proceeding, such as the child’s parents, they must remain impartial to the extent that it is the child they represent and not the entire family.
Any submissions that the ICL makes to the court, cannot simply be their opinion as to what they think should happen. Instead, they must back up those opinions with proper and clear evidence as to why they have come to that conclusion. That evidence can include submissions from other experts such as a child psychologist, and it can also include family reports.
If the child is old enough to give their opinion of what they want, the ICL should allow this to be heard in court in the most appropriate way. In other words, if appearing in the court might be stressful for the child, another means should be sought.
It should be noted that whilst the ICL should enable the child’s opinion to be aired, they do not actually take instructions from the child in the same way an adult would give their family lawyer instructions.