Relationship Between a Child and an Independent Children’s Lawyer (ICL) in Family Law

Professional Relationship between a Child and an ICL

The child has a right to establish a professional relationship with the ICL.

In considering any views expressed by the child and the steps to be taken in a matter the ICL is to be aware: that each child will have different emotional, cognitive and intellectual developmental levels, family structures, family dynamics, sibling relationships, religious and cultural backgrounds; and that children are vulnerable to external pressures when caught in disputes involving their parents.

Information which should be explained to the child.

When the ICL meets the child, s/he should explain to the extent that is appropria0te for the child:

• The role of the ICL including the limitations of the role.
• The court process (including any anticipated interlocutory stages); and
• The other agencies that may be involved and the reasons for their involvement.
• The ICL is to ensure that the child is aware that information provided by the child to the ICL in some circumstances may have to be communicated to the court, the child’s parents or other persons or agencies.
• A strategy should be developed in consultation with any Family Consultant involved in the case and with the child as to the manner in which this is done.
• The aim is to minimise the potential for any adverse reaction towards the child.
• Despite the inability to guarantee the child a confidential relationship, the ICL should,

However, strive to establish a relationship of trust and respect. This is assisted by explaining the role of the ICL, including:

How the child can have a say and make their views known during the process; that where a child of sufficient maturity wishes to have a direct representative who will act on the child’s instructions, the ICL should inform the child of the possibility of applying to become a part to the proceedings:

The involvement of any report writer, the nature and purpose of the report, the use to which the report will be put, and that all parties will see the report; and How the ICL can be contacted by the child?

Limitations of the role of the ICL

The ICL should guard against stepping beyond his or her professional role and should seek guidance from a Family Consultant or other professional when necessary.

While the Family Law Act 1975 and the Family Court Act 1997 in Western Australia provide some basis for a confidential relationship between the ICL and the child, there are ircumstances where the ICL cannot guarantee the child a confidential relationship.

In addition to explaining this limitation at the commencement of the relationship, it may be necessary to periodically remind the child.

It is not the role of the ICL to:

• Conduct disclosure interviews;
• Become a witness in the proceedings; or conduct therapy or counselling with the child.
• The ICL should be alert and sensitive to the risk of a child becoming over dependent upon him or her and should consider seeking peer or professional advice in responding to such a situation.
• The ICL should prepare the child for the end of the professional relationship before the end of the proceedings. They should discuss the fact that the ICL’s role will soon be over, and determine what contact, if any, they will continue to have.

Children’s views

The ICL should seek to provide the child with the opportunity to express his or her views in circumstances that are free from the influence of others.

A child who is unwilling to express a view must not be pressured to do so and must be reassured that it is his or her right not to express a view even where another member of the sibling group does want to express a view.

The ICL should ensure that there are opportunities for the child to be advised about significant developments in his or her matter if the child so wishes, and should ensure that the child has the opportunity to express any further view or any refinement or change to previously expressed views.

The ICL must take into account that the weight to be given to the child’s views will depend on a number of factors and is expected to be familiar with case law on the subject.

In preparing to make submissions on the evidence as to the weight to be placed on the views of the child, the ICL may consult with the single expert, Family Consultant or other relevant expert in relation to:

• The content of the child’s views;
• The contexts in which those views both arise and are expressed; the willingness of the child to express views; and
• any relevant factors associated with the child’s capacity to communicate.
• The ICL is to ensure that any views expressed by the child are fully put before the court and so far as possible, are in admissible form. This includes views that the ICL may consider trivial but the child considers important.
• The ICL is to also arrange for evidence to be before the court as to how the child would feel if the court did not reach a conclusion which accorded with the child’s wishes.

Making submissions contrary to the child’s views

If the ICL considers that the evidence indicates that the best interests of the child will be promoted by orders which are contrary to the child’s views, the ICL is to:

• Advise the child that s/he intends to make submissions contrary to the child’s views;
• Ensure that the child’s views are before the court, together with the arguments which promote the adoption by the court of the child’s views;
• Make submissions which promote the adoption by the court of orders which are in accordance with the child’s best interests;
• Provide clear and cogent submissions as to why the child’s views do not promote the child’s best interests; and
• Explain to the child at the conclusion of the proceedings why s/he made a submission that was contrary to the child’s views (if there has not been an opportunity to do so prior to the conclusion of the proceedings)

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