Independent Children’s Lawyer

Independent children’s lawyers are appointed under a court order to represent a child’s interests. Such orders can be made on the court’s own initiative. Alternatively, they can be sought by either the child, an organization concerned with the child’s welfare or any other person.

It is important to bear in mind that independent children’s lawyers represent the child’s interests – not the child. Accordingly, they are not required to act on the child’s instructions. Their role is to form a view of the child’s interests so that it may be conveyed to the court.

The Full Court of the Family Court enumerated a set of considerations to be taken into account in deciding whether the child’s best interests might require a appointing an independent children’s lawyer. They consist in:

• allegations of child abuse, including physical, psychological or sexual;
• the presence of an apparently intractable conflict between the parties;
• alienation of the child from either or both parents;
• religious or cultural issues affecting the child;
• significant medical, psychological or psychiatric conditions in relation to the parties, the child or any other person having significant contact with the child;
• the presence of material suggesting that it may be inappropriate for the child to live with either parent;
• the sexual preferences of any person having significant contact with the child and how it might seriously affect the child’s welfare;
• cases where the child is of mature age and expresses strong, thoughtful views concerning custodial arrangements;
• any proposal of either party to remove the child from Australia;
• cases involving the separation of siblings;
• cases concerning custodial arrangements where neither party is legally represented;
• certain cases involving the court’s welfare jurisdiction.