The role of an Independent Children’s Lawyers (ICL) in family law proceedings

You’ve found yourself at the Family Court, battling it out with your former spouse over the care and spend time arrangements for your children. You’ve familiarised yourself with the role of the Judge, Family Consultant and “Counsel” (and their exorbitant fees no doubt).

Now the Court decides to appoint an Independent Children’s Lawyers (ICL) and you’re left wondering about their role and how they could affect your case. An ICL is the person appointed by the Court (and allocated by Legal Aid) to present information to the Court about the child’s welfare and views.

Put simply; the child that is the subject of the family law proceedings is the ICL’s client and therefore the ICL has a duty to present evidence and make submissions in the child’s best interests. Their role requires them to read all affidavits filed and speak to any family consultants and other relevant persons (including teachers, doctors’ psychologists and counsellors) to help make their submissions to the court. Depending on the circumstances of the case and age and maturity of the child; the ICL may also elect to interview the child independently to enable them to make informed views about the interests of the child.

If an interview with the ICL coincides with your time with the child; you have a responsibility to ensure that the child attends the interview in a timely manner and must not question the child about their session with the ICL.

The ICL may issue subpoenas to any third party individuals and institutions to obtain further evidence. As with the Solicitors and Counsel representing yourself and your spouse; the ICL is entitled to cross examine witnesses and hand up their proposed spend time arrangements to the Court.

Judicial officers tend to take into account the ICL’s views because of their impartiality and focus on the children’s best interests; which is ultimately the courts’ paramount concern in parenting cases.

An ICL’s role can continue even after agreement between the parents is reached or where Court orders are made. In such circumstances; the ICL has a duty to personally explain to the child the effect of the agreement reached or orders made (subject to the age and maturity of the child).

In the majority of the cases; an ICL will discharge their role in an objective matter and cannot unfairly side with either parent. Merely disagreeing with the ICL’s views does not warrant grounds for complaint against an ICL. In some cases; the ICL views’ might not even mirror the views that the child may be relaying to you as their parent!! Nonetheless; this in of itself does not mean that the ICL has failed in their responsibility.

If you feel that the ICL has breached their practice standards; you can make an application to the court for the ICL’s removal; make a complaint to the Office of Legal Services Commissioner (with respect to the ICL’s breach of professional obligations) or make a complaint to Legal Aid (with respect to any breaches of the practice standards that ICL’s must abide by). Bear in mind that a mere complaint does not warrant the removal of the ICL from your matter without the ICL’s consent or the Court’s approval.

Zahraa Algalele
Partner