What is an “ICL”?
“ICL” stands for Independent Children’s Lawyer. An ICL is a specialist lawyer appointed by the courts to represent the children’s interests in family court proceedings. ICL’s have specialist training and must meet minimum experience requirements to be appointed.
An ICL can be appointed on application to the court by one or both of the parties, or on the court’s own initiative.
An ICL is only appointed in parenting disputes. An ICL does not get involved in property disputes. In cases where parties have both parenting and property proceedings in court at the same time, if an ICL is appointed then they will engage in parenting issues only. This includes ongoing correspondence between the parties.
An ICL is a lawyer for the children in the same way that each parent has their own lawyer. One of the standard rules of representation is that lawyers are prohibited from speaking to the other party without their lawyer present or without their other lawyer’s prior consent. This means that the ICL is not able to communicate directly with the parents if the parents are represented.
ICL’s are subject to certain rules when engaging with parties to a proceeding as well as the children. One of the rules is that the ICL must meet with the children to discuss with them the proceedings and their views (if they have any) about what parenting arrangements they would like. There are limited circumstances when the ICL will not have to meet with the children, being:
§ The child is under 5 years old;
§ The child has expressed that they do not want to meet with the ICL (strong evidence is required); or
§ There are exceptional circumstances.
A common ‘exceptional circumstance’ is in cases where the child has already engaged with counselling and family report writers and there views have been able to be expressed in other ways. In these circumstances, the ICL may propose to the court that it may not be in the child’s best interests to be subjected to yet another court interview.
The ICL may also:
- speak to the child’s counsellors, school teachers, and principals;
- examine documents from organisations such as schools, child welfare authorities, or the police;
- examine medical, psychiatric and psychological records of the child and their parents;
- question witnesses, including parents and experts, at the final hearing; and/or
- make arrangements to obtain independent expert evidence, including from the Court Children’s Service.
The goal of the ICL is to present the best available evidence to the court so that the Judge will be best placed to make a decision about what is best for the children. Their duties are to the children and to the court; not to the parents. It may be incidental that the ICL supports the application of one parent over the other, but that is only on the basis that the proposal is, in the ICL’s view, what is best for the children.
For more information on the ICL see https://www.fcfcoa.gov.au/fl/children/icl
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