When parents cannot agree on arrangements for their children, a family law court may need to decide. In some of these cases the court appoints a lawyer just for the children. That lawyer is called an Independent Children’s Lawyer, or ICL. Parents are often unsure what this person does and whose side they are on.
The short answer is that an ICL is on nobody’s side. Their job is to focus on what is best for the children. This article explains how they are appointed, how they work and who pays.
What an Independent Children’s Lawyer is
The Federal Circuit and Family Court of Australia explains that an ICL represents a child’s best interests in family law proceedings. They promote those interests throughout the case. They do not represent either parent. They also do not simply repeat whatever the child says.
The court can appoint an ICL under section 68L of the Family Law Act 1975. Appointment can also follow an application by a child, an organisation concerned with children’s welfare or any other person. In practice an ICL is usually appointed after a party asks for one. The court then decides if the case calls for it.
When an ICL is appointed
ICLs are not appointed in every parenting case. The court’s Independent Children’s Lawyer page lists the kinds of cases where they are often involved. Common reasons include:
- allegations of abuse or neglect of a child
- high levels of conflict between the parents
- family violence
- serious mental health issues
- difficult or complex issues in the case
Many separated parents never go to court at all. They reach agreement through discussion, family dispute resolution or divorce mediation. An ICL becomes relevant once a parenting case is underway and the issues are serious. Even then, the case may still settle along the way.
What an ICL actually does
An ICL gathers the evidence the court needs to understand the child’s situation. That can include expert evidence where the case needs it. The court says an ICL may look at parents’ medical, psychiatric and psychological records. They may also question parents as witnesses at the final hearing.
The court describes the ICL as an honest broker between the child and the parents. They can help the parents reach an agreement that works for the child. At the final hearing they put forward their own independent view. The court makes the final decision. The SA Legal Services Commission notes that the court is not bound to accept the ICL’s recommendations.
Listening to the child
An ICL must consider the views of the child. However, they provide their own perspective on what is best for the child. This is a key difference from a lawyer who acts on a client’s instructions. The child’s wishes are one factor, not the deciding factor.
The court says an ICL must meet with the child and give them a chance to express their views. There are exceptions. These include where the child is under five, does not want to meet or express views, or there are exceptional circumstances.
Who pays for an ICL
An ICL is often funded through a legal aid scheme, but the court stresses that it is not a free service. The court presumes an ICL is unfunded unless it is privately funded. Courts are generally inclined to order the parties to contribute to the costs. Check with the legal aid commission in your state or territory about how costs will be handled in your case.
In South Australia, the Legal Services Commission provides accredited ICLs. Its information sheet on the role of the ICL from June 2022 says the ICL must seek a share of their costs from the parties. This does not apply to parties on legal aid or where the Commission waives the payment. Arrangements differ between states and territories.
Talking with your children about the ICL
Children may feel nervous about meeting a lawyer. Keep any explanation simple and calm. You might tell them that the lawyer wants to hear how they are going and what matters to them. Avoid suggesting what they should say.
Try not to question your children after the meeting. Pressure from either parent can upset a child and may not reflect well on that parent. Let the child know they are not responsible for any decision. The adults and the court carry that weight.
If your child asks questions you cannot answer, it is fine to say so. You can raise their questions with your own lawyer. Keep the routine of school, sport and time with friends as normal as you can. Stability at home helps children cope while the case runs its course.
Working with an ICL as a parent
Remember that the ICL is not your lawyer and does not take sides. Be honest and respectful in your dealings with them. Provide documents they ask for promptly. Keep the focus on your children rather than on the other parent. Calm, factual communication tends to serve your case better than complaints about the other side.
You will still need your own lawyer to advise you and present your case. Before choosing one, check the lawyer is registered in your state. Ask early about legal costs and costs agreements, including any share of the ICL’s costs you may be asked to pay. Preparing well for your first meeting with a family lawyer helps you make the most of that time.
Frequently asked questions
Is the ICL my child’s lawyer?
Not in the usual sense. The ICL represents the child’s best interests rather than acting on the child’s instructions. They must consider the child’s views but give their own independent view to the court.
Will the ICL meet my child?
Generally yes. The ICL must meet the child and give them a chance to express their views. Exceptions apply where the child is under five, does not want to meet or there are exceptional circumstances.
Does the judge have to follow the ICL?
No. The ICL gives evidence and an independent view, but the court makes the final decision. The court weighs all of the evidence in the case. The child’s best interests remain the central question.
This article is general information only and is not legal advice. Laws and processes differ between states and territories and they change over time. Speak with a qualified lawyer about your own situation.