Independent Children's Lawyer

What is an independent children’s lawyer?

An Independent Children’s Lawyer (ICL) is a solicitor appointed by the Court, to represent children, in complex family law matters. The ICL presents evidence about what is best for the child, which often differs from the child's own wishes. Kath Fielden was first appointed as an Independent Children's Lawyer in 2009. Since then she has represented hundreds of children across Australia and internationally. Click here for information about the role of the ICL published by Legal Aid NSW.

How is an independent children’s lawyer appointed?

An ICL is appointed when the Court is satisfied that the child's interests should be independently represented. The case of Re K (1994) FLC 92-461 established guidelines for the appointment of ICL's. These include cases where: there are allegations of child abuse, intractable conflict between the parents, alienation of the child from one of the parents, cultural and religious differences, one or both parents have an impaired parenting capacity due to a mental, physical or personality disorder, the subject child is realistically estranged from one of the parents, there is a threat that the child will be removed from Australia, both parents are self-represented or the case involves the separation of siblings. Normally once the Court is satisfied that one or more of these criteria apply, an Order will be made asking the Legal Aid Commission to appoint an ICL to represent the child.

How is the Independent Children's Lawyer paid?

During the proceedings the ICL is paid by Legal Aid at Legal Aid rates. At the end of the case, the ICL has a mandatory obligation to seek a costs Order against the parties. However, if a party was in receipt of Legal Aid for any portion of the case, a costs Order cannot be made against them. Fielden and Associates has a good track record in defending ICL cost applications or where applicable, negotiating with Legal Aid for a reduced contribution and/or time to pay.

How does the Independent Children’s Lawyer prosecute a child’s best interests?

The ICL's main job is to gather and collate independent evidence for the Court to weigh up to determine the best Orders for the child, given their identified needs and family circumstances. The ICL collects information about your child in a variety of ways including issuing subpoenas to different organisations for your child's records or by meeting with teachers, counselors or other professionals who have regular contact with your child.

Whilst the ICL often meets the child, if there is a risk of 'systems abuse' (eg the child has seen multiple psychologists, counselors, caseworkers etc), the ICL may decide not to meet the child and to gather information from other sources. The ICL may also arrange a Family Dispute Resolution (mediation) conference with the parties to see whether agreement can be reached about future parenting arrangements for the child.

Can I contact my child’s independent children’s lawyer?

The ICL has to be fair and transparent in their dealings with each of the parties. The Solicitor's Rules prevent an ICL from talking directly to a represented party. Similarly, communications with a self-represented party are normally done via email or letter and sent to the other parties at the same time for the sake of transparency. 

What happens to the independent children’s lawyer after a final Court order is made?

The ICL's role usually finishes 28 days after Final Orders are made by the Court. If the case comes back to Court, the same ICL is often re-appointed.