The role of the Independent Children’s Lawyer (‘ICL’) in Family Law proceedings is multi-faceted.
The different aspects of the ICL role can be relevant to differing extents depending upon, among other matters, the issues in the case and the age of the subject children. The different dimensions to the ICL role include:
- Facilitating the participation of the child in the proceedings;
- Gathering evidence; and
- Managing the litigation and in particular, playing the role of ‘honest broker’ in case management and negotiations.
In November 2015, the Family Law Express study ‘Neither seen nor Heard’ found that only 8% of survey respondents felt the ICL had represented the best interest of their child.
Further, 79% of respondents stated they were ‘extremely dissatisfied’ with the overall performance of the ICL.
Some of the factors which were extremely dissatisfying to the survey respondents were that they were not regularly updated by the ICL as to their progress, were not appropriately informed of the ICL role and the ICL was poorly prepared.
Under the Family Law Act 1975 (Cth) (‘FLA’) Section 68L, the Court can make an Order for the appointment of an ICL and is guided by the criteria set out in the case of Re K (1994) 17 FAMLR 537.
This criteria includes matters involving allegations of sexual, physical or psychological abuse, allegations of anti-social conduct by one or both parents that impinges on the child’s welfare (for example family violence) or matters involving a relocation proposal that would restrict the other parent from spending time with the child.
Australia is a signatory to the United Nations Convention on the Rights of the Child (UNCRC) and this is acknowledged in the FLA.
In particular, FLA Section 60B(4) sub-paragraph 4 states that it is an object of the Act to give effect to UNCRC.
The UNCRC allows for the rights of children to participate in proceedings relevant to their care (Article 9) and to have their views made known in judicial and administrative proceedings (Article 12).
The appointment of an ICL is a means by which Australia can meet its obligations under the UNCRC.
ICL’s are expected to act independently and to provide the Court with impartial assistance in its task of determining what arrangements would be in the ‘best interests’ of the child. In this sense an ICL is a best interests advocate rather than the child’s direct legal representative. (Guidelines for Independent Children’s Lawyers, Guideline 4 and FLA s68LA 4(a)).
The ICL is also obliged to ensure that any views expressed by the child about relevant matters are put before the Court (FLA s68LA (5)(b)).
Further, if it is in the child’s best interest that they do so, the ICL can disclose information communicated to them by the child even if this is against the child’s wishes (FLA s68LA(7) and S68LA (8)).
Whether the ICL meets with the child is a matter for the ICL (Guideline 6.2).
For example, in Queensland, Western Australia and South Australia it is common for ICLs to adopt a collaborative approach with Family Consultants or Single Experts acting as the primary conduit for ascertaining the child’s views.
By contrast, the policy at Legal Aid NSW supports a high level of direct contact with the children.
Most ICLs appear to be particularly cautious in relation to having direct contact with children and the majority view seems to be that where such contact occurs it should ordinarily be for the purpose of familiarisation and explanation of the Court process and outcomes.
The reasons for an ICL relying on Family Consultants or Single Expert Witnesses are as follows:
- These professionals have the appropriate training to elicit and interpret the views of children;
- These professionals may also be called to give evidence on their findings regarding the child’s views and circumstances;
- Some ICLs are concerned to avoid subjecting children to repeated interviews with different professionals (particularly in matters involving investigations of allegations of sexual abuse); and
- Some ICLs are concerned the child may make a disclosure to them (which would necessitate the ICL relinquishing their role and being called to give evidence.)
In contrast, the less common approach identified in the research is termed ‘high participation’.
ICLs who take this view commonly undertake direct contact with children and see their role as facilitating the child’s participation in the proceedings as very important. This participation function aspect of their role informs the evidence gathering aspect of the ICL role in that it directly facilitates access to information about the child’s views and experiences.
Research undertaken by the Australian Institute of Family Studies in 2014 found that, from the perspective of the parents and children interviewed, their experiences were largely negative due to their unmet expectations that the ICL would work closely with the child and parent to form their view on the best interests of the child.
Only one of the children interviewed (known as ‘Sarah’) reported a wholly positive experience. Sarah’s matter involved allegations necessitating the involvement of Police and Child Protection Department which ultimately resulted in a change of residence for her. Sarah summarised her experience with the ICL as follows:
“It was nice to have an ICL because if my word didn’t get out properly I don’t think I would be where I am now. I am happy here.”
In the Australian Institute of Family Studies Report of 2014, ICL’s were asked to reflect on their last 3 cases and the contact they had with children.
35% of the ICLs reported that they ‘often’ or ‘always’ had direct contact with children, 54% reported that they engaged in contact with children rarely or sometimes and 8% reported they never had direct contact with the children.
In contrast, in the same study, 68.5% of Judicial Officers questioned indicated that ICLs should have contact with children, 25.9% indicated that they should not and 1.8% were not sure.
The responses given by non-ICL lawyers and non-legal professionals to the question as to whether ICL’s should have direct contact with children were similar.
Ultimately, unless specifically directed to do so by the Judicial Officer, it is a matter for the ICL as to whether he or she will have direct contact with the child subject to the proceedings. In particular, the assessment about whether to meet with the child and the nature of that meeting is a matter for the ICL (Guideline 6.2)
Although each case must be dealt with on its unique set of facts, it is concerning among ICL’s in different States there are such vastly different approaches and opposing views as to whether the ICL should have direct contact with the child.
This means that in some States the child will have the benefit of having direct contact with the ICL but in others, he or she will not.
 17 FAMLR 537
 See ‘Getting the Word out: The Role of the ICL in the Family Law System’, Kaspiew, Carson, et al 2014 28 AJFL 29 page 1
 See ‘The Role & Efficacy of ICLS’, Carson, Kaspiew, etal, Australian Institute of Family Studies, Family Matters 2014, No 94, page 58
 Ibid, page 59
 Ibid, page 60
 Ibid, page 60
 Ibid, page 5
 Ibid, page 7
 Supra, note 1 above, page 62