The role of the independent children’s lawyer

What is an Independent Children’s Lawyer?

One of the primary objectives of a court in parenting matters is to determine what best interests children are and make orders accordingly. In some cases, an Independent Children’s Lawyer (ICL) will be selected. An ICL acts independently from either party and advocates for your child/children during proceedings on their behalf.

What is the ICL’s role?

Section 68LA of the Family Law Act establishes a role for an impartial and independent children’s commissioner during parenting proceedings. As part of their primary duty, these commissioners must provide information about the best interests in order to guide decisions made by courts or parents with regard to custody issues. Commissioners are expected not only to focus on what is good for one child but also consider other factors such as any special needs that may be present between parties involved in court cases involving multiple families.

The ICL must keep the court’s best interests in mind when making their decisions, and may not just use personal opinions. They should be careful to only present admissible evidence-based information during proceedings or they could face legal consequences! If additional evidence is found, it might lead to a change of recommendations made by earlier ones.

The ICL is committed to ensuring that all matters relating to the child are addressed, while also minimizing any trauma for the victim.

The Court Appointed Legal Counsel (ICL) has a duty and commitment of making sure that everything related to this case is dealt with as well as preventing or at least mitigating the negative impact on such an important individual in our society-the child.

The ICL will also help the parties reach an agreed settlement in their dispute, but only insofar as it is best for the child. The IC may negotiate outside of court or make a judicial determination if they feel that this would be best for him/her. Even when a resolution has been reached between both parents and family members, if he thinks that settling on behalf of your kid could have negative consequences; such as being ill-advised within the context with his interest; then we’ll alert you to those facts.”

When do you need an ICL?

The Court appoints an Independent Children’s Lawyer to advocate for the child if one of these circumstances exist:

  • There are allegations of abuse, neglect, or family violence about the children;
  • There is a high level of conflict and dispute within the parents;
  • The kids are mature enough to be in a position to express their views and those views are indifferent to one or both parents;
  • One or both parents or the children suffer from serious mental health matters;
  • There are proposals composed by one or both parents to relocate the child;
  • There are offers made by one or both parents to separate siblings; or
  • There are many other hard or complex issues that need a third party to serve the interests of the children.            

Does my child give the ICL instructions?

The Family Law Act clearly states that the ICL is not the child’s legal representative and does not take instructions from them. The ICAN cannot make decisions for a child, rather they are only meant to be an advocate on behalf of their best interests in court proceedings before judges or mediators.

The ICL needs to work with the court and make sure that they are informed of what is in the best interest of children. The courts can decide not to act on whatever information a child may provide if it does not feel like this would be beneficial towards them, but must still inform the individual beforehand so he or she will know why their opinion was disregarded.

The guidelines for ICLs are to help children in the decision-making process and enable them to participate. Facilitating their participation is important since it allows kids a voice in what happens as they grow up, which will be beneficial both now and later on down the line.

When determining how much weight to give the child’s views or when deciding how involved the child should be in the decision-making process, consider these factors:

  • How involved the kid wants to be;
  • The child’s age and developmental state;
  • The child’s emotional state; and
  • The child’s own views.
  • The ICL allows the child to get involved in ways that are appropriate for their maturity level.    

How does the ICL manage my child’s “best interests”?

An ICL has many tools in its toolkit to help them determine the best interests of a child. They will meet with children when appropriate and talk through any concerns they have, but this doesn’t mean pressuring kids into talking about things that are hard for them or violating privacy by telling other people what happened during these conversations. It’s important to respect both children’s trust as well as their right not to know some information – an issue that is complicated even further if multiple parties involved don’t want anything disclosed at all!

The ICL may also speak to the child’s principal or school teachers, as well as examine any documents held by the school. When this is done, they will often rely on a counselor if there’s one stationed at that particular institution for advice and input.

The police, child protection services, and government departments are all potential sources of information for the court. A doctor’s perspective could be insightful as well; they might have a patient who has been through this process before.

After the ICL arranges for the family report, a court-appointed “family consultant” interviews all parties involved in the dispute to form an independent view about what type of parenting arrangements should be reached. Their recommendations are used by both the IC and Court when making decisions about how best to care for children during legal disputes.

The ICL may also question the parents, experts, or any other witnesses if they go to a final hearing.

Can I talk to the ICL?

The role of the ICL is to administer justice as fairly and impartially as possible. Their first responsibility, therefore, is impartiality in their dealings with all parties involved in a case. This includes communicating through lawyers whenever necessary or appropriate for legal reasons but also when it comes down to contacting them directly if there are extenuating circumstances that might require independent investigation on behalf of the party being contacted by an unbiased third person (ICL).

A party who cannot afford a lawyer may find themselves in legal trouble without the help of an ICL. This is because if they have no representation, then their communications with the judge will not be monitored by anyone else and could lead to unfair outcomes for them.

The ICL can’t tell the parties what their child has said, but they will inform them if any preliminary opinion is formed. The interim court officer must consult with both parents and take into consideration how each parent feels about possible orders or outcomes for a case before forming an official recommendation to share with one of the litigants in order to promote justice best suited for every party involved.        

Can I object to the ICL?

The Family Law Rules provide a way for any party in the case to request that an ICL be removed. However, courts are reluctant to grant this application so it is necessary that you have sufficient grounds before applying. One thing you can do as part of your application might be claiming that the ICL has acted inappropriately or lacks professionalism; these would both constitute legitimate reasons for removal under The Family Laws Rules.

However, if there’s no wrongdoing on his/her end then what? There may also arise situations where one party believes they cannot work effectively with their child’s other parent because the parties feel too different from each other and disagree about how best to raise their children together but still want some input into decisions made by the court.

It is important that the ICL does not take on a role of responsibility for too long. If there are circumstances where it becomes clear that these obligations no longer make sense, then they should petition to be discharged from their position as soon as possible to avoid any possible conflicts down the line.   

Who pays for the ICL?

Legal Aid is the organization that’s usually responsible for making arrangements for your ICL. They determine which lawyer you’ll work with and also how much money they can give to help pay them, but Legal Aid doesn’t have enough funds so it might be up to both parties involved in a case where one side has less income than the other party.

Under the Family Law Rules, if one party cannot afford to pay for an ICL’s costs and must rely on Legal Aid NSW or WA’s legal aid system instead of a private lawyer, that person will have to share some responsibility with their opponent. The court may also order a parent who does not qualify for government assistance due to income level but can still contribute because they are able-bodied enough should be forced by law to maintain financial peace in divorce proceedings as well.

Disclaimer: The following legal information is meant to be informational only. If you have any concerns, contact us immediately for the best advice and counsel available at this time.

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