Providing an independent voice: role of independent children’s lawyers in family law proceedings

In May, LSJ Online reported on the impact that funding shortage will have on vulnerable families. As Legal Aid NSW reduces the number of people it can help as a result of the federal budget, independent children’s lawyers, are also impacted, with budget cuts likely to have serious ramifications for children in family law proceedings. So, what is an independent children’s lawyer (ICL), what role do they play in family law proceedings and why is it so important?

ICLs are best interest representatives, which means they do not act on the child’s instructions. Their role includes obtaining relevant evidence, facilitating the participation of the child in the proceeding, minimising the trauma to the child associated with the proceeding, informing the court about the child’s views and wishes, and making submissions to the court, based on all of the relevant evidence, about the course of action they consider to be in the best interests of the child. An ICL, as a best interests representative, must be independent and impartial.

ICLs are generally appointed in the most complex and sensitive parenting matters, including cases involving allegations of family violence, abuse or neglect, high conflict between parents, serious mental health concerns, or difficult questions about a child’s welfare. Their role is not to act on instructions from the child in the same way a solicitor acts for an adult client, but to independently represent and promote the child’s best interests, informed by the evidence, the child’s views where appropriate, and the particular circumstances of the case.

That independence is important because family law proceedings can be shaped by adult conflict, trauma and competing accounts of what is best for a child. An ICL can help ensure the child is not lost in that conflict. They gather and test evidence, assist the court to understand the child’s circumstances, help identify risk, and, where appropriate, support the child’s participation in a way that is safe and age appropriate.

Kerri Phillips, principal solicitor at Phillips Levy Bennett Legal and Accredited Specialist in children’s law, explains that ICLs perform a key function during the court process. “It is important to minimise the impact of the case on the child and sometimes you minimise the impact by good management so that things don’t drag on.”

A core part of the ICL’s role is to listen to the child and explain the process in a way that is appropriate to the child’s age, circumstances and level of engagement. The extent of that communication often depends on the stage of the proceedings and where the child is emotionally and developmentally.

Building on that, Phillips says a central part of an ICL’s role is to confine the issues and assist parents to reach agreement where possible, with the extent to which they present a child’s views varying depending on the nature of the case, from more forensic matters to those focused on supporting and conveying the child’s perspective.

In family law, it is not uncommon for parties to change legal representatives throughout the proceedings. Phillips points out the ICL will often be the solicitor who is most familiar with the case.

However, ICLs are often faced with a vast workload. In practice, that work can include preparing chronologies, issuing subpoenas, organising material for the court and preparing tender bundles, in addition to the broader task of ensuring the child’s interests remain central to the proceedings.

Christina Lam, Director at Christina Lam Associates, says ICLs often wear different hats during court proceedings. “[T]he ICL presents and looks at the evidence before the court, obtains the evidence for the court, and then submits to the court what is in the children’s best interest. …”

As Lam explains, an ICL plays a crucial role at all stages of the proceedings. In her experience, a “proactive” ICL would attend a final hearing equipped with a proposal or plan to put to the parties to try to resolve the dispute and settle the matter. She points out that this saves the court, and the parties, time and resources.

For many ICLs the workload often exceeds the funding they receive but they don’t do the work for the money.

In NSW, most ICLs receive funding from Legal Aid and are paid fees linked to different stages of the proceedings. Phillips says the funding model provides an initial fee up until a matter is listed for final hearing, followed by a further preparation fee and a daily fee for appearing in court.

Legal Aid NSW has announced that, as part of broader changes to family law services, ICLs will only appear at final hearings where one or both parties are self-represented. For practitioners, that change narrows the circumstances in which an ICL can remain actively involved at the very stage when the court is asked to make final decisions about a child’s future care arrangements. The concern for ICLs is not only financial. Funding limits can affect the practical capacity of practitioners to take on these appointments, particularly where matters involve extensive evidence, subpoenas, expert reports, conferences, interim disputes and final hearing preparation. If experienced practitioners reduce or cease ICL work because it is not sustainable, the impact will be felt by children, courts and families alike.

Lam says she became an ICL for a variety of reasons. One reason was understanding how parental separation impacts children. She explains that “children who are going through separation or experiencing trauma need a voice in court proceedings and during the difficult periods in their lives.” Lam has first-hand experience of this and says it inspired her to become an ICL.

She emphasises that, “ICLs mainly do the work not because of the funding, not because of the glory or any of that, but primarily so that we can assist children and the court.” Phillips admits that being an ICL can often involve doing a substantial amount of work with minimal funding.  However, she explains that ICLs do this work for different reasons. “I think people do it because it’s important work and they see the value of it,” she says.

Lam agrees and says that a lot of ICLs don’t do the work for the money. However, reduced funding will further impact the financial viability of this work for many ICLs. “[S]peaking to other practitioners and colleagues that I know, they’re like ‘well, where to from here? … Should I continue doing the work? …

“[S]peaking as a practitioner, you’re left in a difficult position where you’re very passionate about the work that you do, but there’s uncertainty in continuing that line of work because of the funding issue.”

Lam emphasises that cutting legal aid funding impacts the most vulnerable in our community. “[W]e’re talking about vulnerable children, vulnerable families,” she says.