What is an Independent Children’s Lawyer?

Are you wondering what an Independent Children’s Lawyer (ICL) does? Well you’re looking in the right place!

What is an Independent Children’s Lawyer (ICL)?

An Independent Children’s Lawyer is a lawyer that is appointed by the Family Court to represent a child’s best interests in child-related proceedings. The relationship between an ICL and a child is not a typical lawyer-client relationship; the ICL does not have to follow the child’s instructions. The ICL looks at the evidence in the case and tells the Court what they think is the best interest of the child.

The ICL is not a child’s legal representative. An ICL will objectively consider all information in the matter and inform the Court of what they consider is in the best interest of the child; the recommendations made by the ICL may conflict with the child’s expressed wishes. The ICL plays a key role in collecting information from third parties such as welfare agencies, medical records from medical or other practitioners, school records from educational or other institutions, police records, and any other information which may assist the Court.

Can you independently appoint an ICL?

The appointment of an ICL is at the discretion of the Family Court. However, the Family Court, a parent, a child, or an organisation concerned with the welfare of the child can make an application to the Family Court for the appointment of an ICL.

When will an ICL be appointed?

The reasons for appointing an ICL are set out in a 1994 case called “Re K”. This case says that the reasons include:

  1. Where there is a manifest continuing hostility between the parties to the proceedings and particularly where the children are being used by either or both parties to hurt the other;
  2. Where one of the parties to the proceedings is not a natural parent of the children;
  3. Where the children are ordinarily in the possession, care, and control of a person other than their parents;
  4. Where the children are the subject to an order under the State Children’s Welfare Legislation;
  5. Where there are real issues of cultural or religious difference;
  6. Where there are issues of exotic sexual or antisocial tendencies on the part of a parent or parents or other person with whom the children come regularly into contact;
  7. Where there are issues of significant mental illness or personality disorder in relation to either party or a child, or to other persons having significant contact with the children;
  8. Where there is a history of recurring resort to litigation over custody or access by either or both parents;
  9. Where it appears that the children are having difficulty adapting to a new family situation in either parent’s household;
  10. Where it appears that both parties propose arrangements which will have the effect of separating siblings; and
  11. Where child abuse is an issue.

Cute little preschool boy with big bump on his head from falling, hugging his mom at home and eating lollipop

Who pays for the ICL?

This depends on the circumstances of the case and will often involve and assessment by Legal Aid WA of each party’s financial situation. Depending on the outcome of their assessment, Legal Aid WA may choose to fund the cost of the ICL; alternatively, it may be that one or both of the parents (or another party to proceedings) may be asked (or ordered) to contribute towards the cost of ICL.

Can I speak with an ICL or can my lawyer speak with the ICL?

If you have your own lawyer they will liaise with the ICL on your behalf. If you do not have a lawyer, you can speak to the ICL yourself. You need to remember that anything that you say to the ICL is “on the record”. This means that anything discussed with NOT be kept secret or confidential.

Please be aware that any information provided to an ICL is NOT privileged and may be used at any time during Family Court proceedings.

If you need a lawyer to represent you, please contact us at 08 9443 1111.

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