Who's Looking After the Children?15-06-2021 | Resource
When a family breaks down and parents separate, the children are often the ones who seem to suffer most. In recent years the media has reported on many family law cases involving issues such as child abduction, absentee parents, domestic violence and child abuse. Every case is heartbreaking for those involved and many of us are left thinking "who's looking after the children's best interests?".
Well, in some instances at least, there is someone looking after the children.
When difficult parenting matters reach the Court, a judge may feel that the children of the marriage or relationship need a voice of their own - someone to look after their best interests and act on their behalf. In these situations, they may decide that it is necessary to appoint an independent children's lawyer, or an ICL.
What is the role of an ICL?
When a court appoints an ICL, that person will actually become a party to the proceedings and will prepare a case that protects the best interest of the child. Importantly, an ICL is not simply the child's legal representative. The ICL doesn't take instructions from the child, but rather listens to the views expressed in the court case and reaches a conclusion that is impartial to the interests of the parents and focuses purely on the best interests of the child.
The ICL is obliged to raise anything in court that is relevant in establishing the best interests of a child. He or she is not obliged to disclose anything that the child tells the ICL, however, the ICL can break this confidentiality if he or she believes it would be going against the child's best interests not to disclose.
When will an ICL be appointed?
The decision of whether to appoint an ICL is ultimately left to the discretion of the court. However, there are a number of circumstances in which an ICL is more likely to be appointed, such as:
- If there is history of child abuse;
- If the parties (i.e. the parents) cannot come to an agreement on anything;
- If either party is seeking to separate siblings;
- If the court does not consider either parent suitable to have custody of the child;
- If there are significant differences in relation to the parents views on the religion or cultural upbringing of the child;
- If neither the mother nor the father is legally represented.
What can you expect from an ICL?
When an ICL is appointed the ICL will usually need to meet with the child, unless of course the child is too young to be able to express his or her views, or if the geographical location of the child makes it impractical.
If an ICL is appointed, then the ICL will listen to the views of the child in relation to the family dispute, taking into account the child's age, maturity, and emotional state etc, and then give appropriate weight to this view.
In some cases, the ICL may need to issue subpoenas in order to assist in preparing the case on behalf of the child. This is particularly important when there is a history of violence (subpoenas could be issued to the Police or to the Department of Community Services) or where the child has a significant medical issue (for example, the ICL could subpoenas the child's medical records). The ICL may also deem it necessary to liaise with other important people in the child's life e.g. the child's school in relation to attendance, and progress.
If the court orders that a Family Report is to be prepared for a particular case, the ICL will also communicate with the Family Consultant responsible for preparing the Report to help conclude what is in the best interests of the child.
Most importantly, the ICL has a duty to try and minimise the trauma associated with the proceedings for the child and explain both the Court process and the outcome of the proceedings to the child, where appropriate.
Who pays for the ICL?
In many situations a solicitor from Legal Aid NSW will be the ICL, and will be funded by Legal Aid. However, if the court believes that the parties involved in the dispute are relatively well off, either or both parents can be ordered to assist in payment of the ICL's fees.
For more information on the appointment of an ICL or to discuss a family law concern of your own, contact one of the experienced family lawyers at Lamrocks Solicitors on ph: 02 4731 5688.