Independent lawyer to represent child’s best interests29-November-2010 Family Law By Mark Streeter
Why can’t children use the same lawyer as their parents?
Unfortunately parents often take adversarial and diametrically opposed positions in respect of what is in the “best interests” of children in Family Law parenting cases.
Accordingly it is practice for the Court to appoint an “ICL” or Independent Children’s Lawyer to represent the children’s best interests in any contested hearing before the Court.
The ICL operates as a “Separate Representative” to ensure that submissions are made and evidence brought before the Court in order that a determination may be made in accordance with law and the principles of the Family Law Act.
The separate representative ought to:
- Act in an independent and unfettered way in the best interests of the child.
- Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.
- Inform the Court by proper means of the children’s wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child’s expressed wishes to the attention of the Court.
- Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.
- Test by cross-examination where appropriate the evidence of the parties and their witnesses.
- Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.
- Minimise the trauma to the child associated with the proceedings.
- Facilitate an agreed resolution to the proceedings.
The Independent Children’s Lawyer is not “bound” to take an adversarial or contradictory role and may either support one parent’s application over the other or alternatively submit a completely new third version of proposed orders in respect of children.
The Independent Children’s Lawyer has an incredibly powerful and influential role in parenting matters in the Family Courts. It is an important safeguard to ensure a “neutral” party is presenting as objectively and as “disinterested” submissions in the interests of the child (or children) as is possible in the circumstances.
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