What is an Independent Children’s Lawyer and when is one appointed?
The first article in our four-part What Is ? series deals with Independent Children’s Lawyers.
In Family Law parenting matters, there can often be an intractable dispute between the parties regarding where their child or children should live and how much time the child or children should spend with the other parent. In these situations, the Court may appoint what is known as an Independent Children’s Lawyer.
In all parenting disputes, the child’s best interests are the paramount consideration. If it appears to the Court that the child’s interests in any proceedings before the Court ought to be independently represented by a lawyer, the Court can make such an Order pursuant to Section 68L of the Family Law Act 1975 and appoint a lawyer for that specific purpose.
An Independent Children’s Lawyer is only appointed in limited circumstances. In deciding whether it is appropriate to appoint an Independent Children’s Lawyer, the Court will consider the factors set out in the decision of a 1994 case called “Re K” (Re K (1994) 17 FAMLR 537) which include:
- Where someone has made an allegation of child abuse
- If the parents cannot agree on any issues and there is intractable conflict
- The child is not speaking to one or both parents or is being alienated from a parent
- 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 siblings
- 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
The Court is able to appoint an Independent Children’s Lawyer either of its own motion but it usually occurs after one or both of the parties make a request for such an appointment. An application can also be brought by the child (highly unusual), or on the application of any organisation concerned with the welfare of child, such as the Department of Communities, Child Safety and Disability Services.
What is the role of an Independent Children’s Lawyer?
The role of the Independent Children’s Lawyer is set out at Section 68LA of the Family Law Act 1975.
It is a common misconception when an Independent Children’s Lawyer is appointed that they are the lawyer for the child are that they are obliged to act on the child’s instructions in relation to the proceedings.
An Independent Children’s Lawyer’s role is primarily to gather all evidence necessary or required in order to assist the Court in making an Order that is in the child’s best interests. In determining what evidence is required, the Independent Children’s Lawyer should also be mindful of and endeavour to minimise the trauma to the child where possible.
An Independent Children’s Lawyer usually does not speak directly with the child or children who are the subject of the proceedings, but there are certain cases where this is appropriate and this is entirely a matter for the Independent Children’s Lawyer whether they take this course. What normally occurs is that the Independent Children’s Lawyer arranges for all parties, the child and any other significant persons in the child’s life to attend upon a child psychologist or social worker for the purpose of being interviewed and having a family report prepared. This report will normally include recommendations as to the matters in dispute between the parties, such as a recommendation as to which party the child should primarily live with.
The Independent Children’s Lawyer must act impartially when dealing with the other parties to the proceedings and ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court. Whilst an Independent Children’s Lawyer is not under an obligation and is not required to disclose to the court any information that the child communicates to them, they may choose to disclose any such information if they consider the disclosure to be in the best interests of the child. They can disclose all such information even if the disclosure is made against the wishes of the child.
It is important that an Independent Children’s Lawyer forms an independent view based on the evidence available (such as a family report) and that they act in the best interests of the child at all times.
If the Independent Children’s Lawyer is satisfied that a particular course of action should be adopted, then he or she is required to advise the Court accordingly. This usually requires the Independent Children’s Lawyer to inform the Court where the child should live and how much time the child should spend with the other parent. The Court is guided by the position of the Independent Children’s Lawyer in circumstances where they are an impartial party who is only acting in the best interests of the child and are not motivated or influenced by any other factors.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.