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

or many parents, the early stages of separation are marked by change, uncertainty, and a lot of unknowns. The idea of their child being independently represented can feel confronting, and we often hear this from families entering contact supervision.

We are grateful for this piece from Alison Osmand from Alison Osman Family Mediation, which offers a clear understanding of the role of the Independent Children’s Lawyer.

Jakki 

When families are navigating separation and parenting disputes and court proceedings , the legal process can feel overwhelming, especially when children are involved. It’s completely natural for parents to want clarity, reassurance, and to understand who is involved in decisions affecting their children.

One role that often raises questions is that of the Independent Children’s Lawyer, commonly referred to as an ICL.

So, what exactly does an ICL do, and when are they involved?

An Independent Children’s Lawyer can only be appointed by an Order of the Court. This usually occurs when the Court decides an ICL is necessary, or when one of the parents makes an application to the Court for a lawyer to be appointed for the children.

It’s important to know that not every parenting matter before the Court will have an ICL.

These appointments are typically reserved for more complex matters, particularly where there are concerns about a child’s safety or wellbeing, or where the matter involves a high level of conflict or when parents or the children have serious mental health or substance abuse issues.

For many parents, the involvement of an ICL can feel daunting at first, and sometimes even intrusive. However, it reflects the Court’s intention to ensure that your child’s needs are carefully and independently considered.

ICLs are experienced family lawyers who have undertaken additional training for this specialised role. Generally, they have a minimum of five years’ experience in family law. They are selected from a panel and are funded by Legal Aid (LAO) in each state or territory. In some cases, parents may be required to reimburse Legal Aid; however, this is uncommon and typically only occurs where the parents are assessed as having the financial capacity to do so. The panel also includes lawyers employed by Legal Aid, who are equally experienced and trained in this area.

Because of their experience, ICLs are well-equipped to work with families in sensitive situations and to navigate the complexities that can arise in parenting matters.

A common misconception is that the ICL acts as the child’s personal lawyer. This isn’t quite right.

Unlike a lawyer representing an adult, an ICL does not take direct instructions from the child in the same way you would provide instructions to your own lawyer. Nor do they simply advocate for what the child says they want.

Instead, their role is more independent and balanced. It has often been compared to counsel assisting a Royal Commission, in that they help the Court understand what outcome is in the best interests of the child, based on all of the available evidence.

This can sometimes feel challenging for parents, particularly if the ICL’s position differs from their own views. However, the ICL’s role is not to take sides, but to assist the Court in making decisions that support the child’s long-term wellbeing.

ICLs play an active and thoughtful role in the matter. They may meet with school-aged children and explain the court process in a child-focused, age-appropriate way. In some cases, it may also be appropriate for the ICL to speak with teachers, counsellors, or other professionals involved in the child’s life. The ICL will also review reports and other important evidence placed before the Court.

They are also required under the Family Law Act to ensure that children (where appropriate) are given information about the proceedings in a way they can understand, helping them feel more informed and supported during what can be a confusing time.

Importantly, while ICLs may meet with children, this does not occur in every matter. Where it does occur, it is done carefully and appropriately. The goal is not to place pressure on the child to choose between parents, but to ensure their experiences and perspectives are properly understood.

ICLs are closely involved in the legal process. They may call their own witnesses, cross-examine parents and other witnesses, issue subpoenas to gather evidence, and make submissions to the Court about what they believe is in the child’s best interests.

Through this work, the ICL helps ensure that all relevant information is brought before the Court in a clear and structured way.

If an ICL has been appointed in your matter, it can be helpful to view them as an additional support to the Court, someone focused solely on your child’s safety and wellbeing.

While you may not always agree with their approach or recommendations, their role is to provide an independent perspective in what can often be a highly emotional process.

For many families, the presence of an ICL can assist in reaching outcomes that are more balanced, informed, and centred on the needs of the child.

In complex or high-conflict matters, it can be difficult for the Court to fully understand a child’s situation without independent assistance. The ICL provides that independent voice, one that is not aligned with either parent, but instead focused solely on the child.

At its heart, the role of the ICL is about ensuring that children remain at the centre of decision-making, even in the midst of difficult circumstances.

If you are unsure about the role of an ICL in your matter, seeking guidance from a family law professional can help you better understand what to expect.