GUIDELINES FOR INDEPENDENT CHILDREN’S LAWYERS
Endorsed by the Chief Justice (Division 1) and Chief Judge (Division 2) of the Federal Circuit and Family Court of Australia and the Chief Judge of the Family Court of Western Australia.
Table of Contents
This document is intended to provide guidance to the Independent Children’s Lawyers (ICL) in fulfilling their role.
The Guidelines have also been issued for the purpose of providing practitioners, parties, children and other people in contact with the family law courts, with information about the courts’ general expectations of ICLs.
The Guidelines set out these expectations as they relate to children in circumstances where allegations of child abuse and/or family violence are made, children from culturally and linguistically diverse families and communities, children with disabilities, Aboriginal and Torres Strait Islander children, and where applications arise for the authorisation of special medical procedures and other orders relating to the welfare of children.
This is a public document which is endorsed by the Chief Justice (Division 1) and Chief Judge
The Guidelines will be used in the training of ICLs.
The role of the ICL is unique. The lawyer appointed to represent and promote the best interests of a child in family law proceedings has special responsibilities.
Decisions in particular cases as to how the ICL progresses the case and how s/he involves the child in the case are ultimately, subject to the statutory requirements in Division 10 Part VII, in the ICL’s discretion.
The ICL is expected to use their professional judgment and skill, subject to any directions or orders of the court. The availability of funding is a practical constraint.
The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in their professional responsibilities.
The appointment of an ICL is one means of giving effect in family law proceedings to the United Nations Convention on the Rights of the Child, now referenced in the Objects of Part 7 of the Family Law Act 1975, which states that:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (Article3.1)
“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” (Article 12.1)
“For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body consistent with the procedural rules of national law.” (Article 12.2)
The best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision-making about the proceedings.
However, this does not mean that the child is the decision-maker. Among the factors that indicate the appropriate degree of involvement in an individual case are: the extent to which the child wishes 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 views.
These factors may change over the course of the ICL’s appointment.
The ICL is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.
The ICL must be truly independent of the court and the parties to the proceedings.
The professional relationship provided by the ICL will be one of a skilful, competent and impartial best interests advocate. It is the right of the child to establish a professional relationship with the ICL.
The ICL should seek to work together with any Family Consultant (including a Court Child
Expert performing the role of Family Consultant) or other relevant expert involved in the case to promote the best interests of the child.
The ICL should assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child’s best interests.
The ICL should bring to the attention of the court any facts which, when considered in context, seriously call into question the advisability of any agreed settlement.
The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child.
The ICL does not take instructions from the child but is required to ensure the court is fully informed of the child’s views, in an admissible form where possible.
The ICL is to ensure that the views and attitudes brought to bear on the issues before the court are drawn from and supported by the admissible evidence and not from a personal view or opinion of the case.
The ICL is expected and encouraged to seek peer and professional support and advice where the case raises issues that are beyond his or her expertise. This may involve making applications to the court for directions in relation to the future conduct of the matter.
The ICL must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
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