Should an Independent Children’s Lawyer (ICL) meet with the child of the parties when compiling a family report. (A summary of the principles set out in a recent decision of the Family Court ). The role of an Independent Childrens Lawyer (ICL) is pivotal in family law proceedings, as they act as an independent representative of a child’s best interests. This role is guided by the Family Law Act 1975 (Cth) (the Act), as well as by the National Guidelines for Independent Children’s Lawyers (the National ICL Guidelines), which emphasize the importance of meeting with the child in most circumstances. A recent Family Court decision has shed light on the legal principles surrounding whether an ICL should meet with a child during the preparation of a family report. This discussion explores the relevant legal framework, the obligations of an ICL, and the circumstances in which a meeting may or may not occur, with a focus on ensuring the child’s best interests remain the paramount consideration.
Table of Contents
THE RELEVANT LEGAL PRINCIPLES
What is an ICL?
An ICL is a lawyer appointed under s 68L of the Family Law Act (the Act) if it appears to the Court that the child’s best interests ought to be independently represented by a lawyer.
Section 68LA(2) of the Act provides that an ICL must form an independent view, based on the evidence available, of what is in the best interests of the child, and act consistently with those best interests in the proceedings.
The ICL is not the child’s direct legal representative and does not act on the child’s instructions (s 68LA(4)).
Section 68LA(5) of the Act defines the specific duties of an ICL:
(1) The independent children’s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court’s attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Section 68LA(5A) explicitly provides that the ICL must perform, not necessarily at the same time, the following two, separately defined duties:
(a) meet with the child;
(b) provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate.
Unless the child does not want to meet with the ICL, these two duties may be performed at any time during the proceedings, but must occur prior to the Court making final orders, unless an exception in subsection (5B) arises.
Section 68LA(5B) provides that an ICL is not required to perform the obligation arising from subsection (5A) if:
(a) the child is under 5 years of age; or
(b) the child does not want to meet with the independent children’s lawyer, or express their views (as the case requires); or
(c) there are exceptional circumstances that justify not performing the duty.
The term “exceptional circumstances” is not explicitly defined in the Act. However, subsection (5C) provides that:
Without limiting paragraph (5B)(c), exceptional circumstances for the purposes of that paragraph include that performing the duty, would:
(a) expose the child to a risk of physical or psychological harm that cannot be safely managed; or
(b) have a significant adverse effect on the wellbeing of the child.
A reading of the legislative amendments might leave the impression that a child meeting with an ICL is a new initiative. This is not the case. The existing National Guidelines for Independent Children’s Lawyers (2021) (“the National ICL Guidelines”) provide guidance to the ICL in fulfilling their role, including that ICLs should meet with children in most circumstances (Parts 5 and 6.2 of the National ICL Guidelines). The National ICL Guidelines have been endorsed by the Court.
Section 68LA(5D) of the Act provides a legislative pathway for cases where an ICL argues that there are exceptional circumstances under s 68LA(5B)(c) that justify that no meeting should take place between the ICL and the child.
However, no such requirement exists in circumstances where it is argued that the child does not want to meet with the ICL.
The source of power that allows the Court to compel a parent to facilitate a meeting between the ICL and the child is set out in s 68L(2)9b) of the Act. Section 68L(2)(b) provides that the Court can make such other orders as it considers are necessary to secure the independent representation of the child’s interests. An order facilitating a meeting between the child and the ICL may well be necessary to secure the representation of the child’s best interests.
As well, the Court can exercise injunctive powers under s 68B of the Act. Under this section, the Court has the broad discretion to grant an injunction “unconditionally or on such terms and conditions as the court considers appropriate”. s 68B(3)). An injunction made under s 68B must be made in the best interests of the child. It allows the court to receive an independent, unbiased perspective of the child’s views and wishes in relation to the final parenting arrangements that are made.
The recently amended s 60B sets out two objectives. Firstly, to ensure that the best interests of children are met, including by ensuring their safety, and secondly to give effect to the United Nations Convention on the Rights of the Child (“the Convention”). The Convention provides a basis to interpret the Act within the context of international human rights principles.
The Convention provides at art 12:
Article 12
- 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.
- 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, in a manner consistent with the procedural rules of national law.
The appointment of an ICL for a child is one of the mechanisms available under the Act to give effect to art 12 and provide the child with the opportunity to be heard through an appointed representative who is uniquely neutral and independent.
Section 68LA(2) of the Act provides that an ICL must form an independent view, based on the evidence available, of what is in the best interests of the child, and act consistently with those best interests. It would be difficult for this to be achieved without at least one meeting taking place.
The National ICL Guidelines provide that there are many purposes of a meeting between an ICL and a child.
- to “establish a professional relationship with the ICL”;
- to explain the role of the ICL and the court process;
- to provide the child with the opportunity to express a view free from the influence of others (including parents); and
- so that a child can be “advised about significant developments in his or her matter” and, if the child so wishes, to ensure that “the child has the opportunity to express any further view or any refinement or change to previously expressed views” (Part 5.3).
s 68LA(5AA) provides the ICL a discretion to determine the timing, frequency, and method of engagement with a child based on the ICL’s professional judgment
The Courts Guidelines for Independent Children’s Lawyers, provide guidance for an ICL meeting with and obtaining the views of the child.
The recent Family Court decision reinforces the critical role of the ICL in ensuring that a child’s best interests are represented in family law proceedings. The Act and the National ICL Guidelines underline the necessity of providing children with the opportunity to express their views and establish a professional relationship with the ICL. While exceptions exist, such as when a child is too young or exceptional circumstances arise, meeting with the child is often essential to fulfilling the ICL’s duties and adhering to international principles, such as those set out in the United Nations Convention on the Rights of the Child. Ultimately, the discretion and professional judgment of the ICL, supported by judicial oversight, ensure that the process remains focused on minimising trauma and upholding the welfare of the child.
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