There is no requirement for a child to have their own legal representation in parenting proceedings. However, any party in these proceedings can request that the Family Court appoint an Independent Children’s Lawyer to promote the best interests of a child.
What is the Independent Children’s Lawyer’s role?
The role of an Independent Children’s Lawyer is to represent and promote the best interests of a child. They are to remain impartial, truly independent of the Family Court and focus solely on what is best for a child.
According to the Guidelines for Independent Children’s Lawyers (2013), an Independent Children’s Lawyer should:
- assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child’s best interests;
- bring to the attention of the Family Court any facts which, when considered in context, seriously call into question the advisability of any agreed settlement;
- promote the timely resolution of the proceeding; and
- ensure the Court is fully informed of the child’s views.
What does an Independent Children’s Lawyer do?
Depending on the circumstances of a case, an Independent Children’s Lawyer may:
- meet with the child (if they are school age or above);
- liaise with a Single Expert Witness and/or Family Consultant;
- communicate with the parties or their lawyers and act as an “honest broker” on behalf of the child in any settlement negotiations;
- examine material produced by way of subpoena e.g. documents from schools; the Police; the Department of Communities; and medical records.
- request that the parties undergo drug and/or alcohol testing;
- arrange for any additional psychological of family report.
When is an Independent Children’s Lawyer appointed?
The Family Court may decide the appointment of an Independent Children’s Lawyer is appropriate if:
- the dispute involves difficult and complex parenting issues, or
- a high level of conflict between parties or serious allegations. (e.g. allegations of abuse; neglect; family violence; substance abuse; and/or serious mental health issues impacting upon the wellbeing of a child.)
How much contact will our child have with the Independent Children’s Lawyer?
A child’s level of involvement with an Independent Children’s Lawyer will vary from case to case. The Guidelines for Independent Children’s Lawyers (2013) states that an appropriate level of involvement should be based on:
- the extent to which the child wants to be involved; and
- the extent that is appropriate for the child having regard to the child’s age; developmental level; cognitive abilities; emotional state and/or views.
In circumstances where it is appropriate for the Independent Children’s Lawyer to meet with a child, they will explain their role in parenting proceedings and the Family Court process.
This might include a discussion to ascertain the child’s views on decisions the Family Court may have to make about their future.
It is important to remember that an Independent Children’s Lawyer does not act on instructions from a child.
In a similar vein the discussions between an Independent Children’s Lawyer and a child about their views are not privileged or confidential. This means the Family Court or other parties can potentially become privy to these discussions.
Ultimately, an Independent Children’s Lawyer does have to consider the child’s views, but they do not take a child’s instructions.
The Independent Children’s Lawyer’s primary responsibility is to make an independent assessment. This independent assessment is what forms the basis for all submissions to the Family Court about what the child’s best interests are.
Who pays for an Independent Children’s Lawyer?
Legal Aid, the parents, or a combination of both, will usually pay for the appointment of an Independent Children’s Lawyer.