A children’s lawyer (also known as an ‘independent children's lawyer’) is a lawyer who is appointed during court proceedings to advocate for and make recommendations to the court about what is in the child’s best interests. A children’s lawyer helps to ensure that the best interests are the focus of any decisions that are made with regard to parenting arrangements, such as where the child will live.
What type of tasks does a children’s lawyer carry out?
The children’s lawyer’s primary role is to ascertain what kind of circumstances the child is currently facing. They will then provide the court and the parents an independent and impartial view as to what they consider is the child’s best interests in those circumstances.
To form this view, the children’s lawyer may do things like:
- read the documents that have been filed by the parties to the proceedings;
- speak with the child’s teachers and/or the principal of their school;
- speak with the child’s counsellor (where applicable);
- review medical reports pertaining to the care of both the child and their parents;
- review any other relevant documents from government agencies;
- interview any other parties relevant to the proceedings;
- they may arrange for a family report to be prepared by a social worker or psychologist to help understand the family situation and any views of the children; and
- they may arrange for a psychiatric assessment of the parents from a psychiatrist to better understand any challenges that either parent may be facing and any impact on their ability to provide care to the child
They will also speak with the child and the parents if it is appropriate and feasible to do so. The age of the child/children will be a key determinant in deciding if the child/children should be interviewed. For example, teenagers or older children will likely be asked for their opinion and wishes for the parenting arrangement, whereas younger children are less likely to be consulted.
How is a children's lawyer appointed?
A children’s lawyer is either appointed by the Family Law Court or at the request of one or both of the parties involved in parenting proceedings, where it is considered crucial to the child's welfare and wellbeing.
Under what circumstances is a children’s lawyer appointed?
The Family Court will usually agree to appoint a children’s lawyer in parenting disputes if one or more of the following circumstances are present:
- one or both of the parents is not legally represented and the likelihood of reaching an agreement is low;
- neither parent displays the characteristics of a suitable custodian;
- one or both of the parent's conduct is a threat to the child or children’s welfare;
- there are allegations of abuse or neglect towards the child or children;
- there are allegations of family violence;
- one or both of the parents is experiencing or experiences serious mental health issues;
- the child or children is experiencing or experiences serious mental health issues;
- there is a risk that siblings will be separated or that one or more children will be removed from the jurisdiction in which they currently live; or
- any other circumstances in which the Court believes a children’s lawyer may be required to assist.
Who can contact the children’s lawyer?
If a parent has their own lawyer, the children’s lawyer will discuss the case directly with their lawyer.
Parents who do not have their own lawyer will be contacted by the children’s lawyer directly.
Parties to the proceedings, such as the parents or other family members should not contact the children’s lawyer directly.
Can a children’s lawyer be removed from the matter?
An application to have the children’s lawyer removed can be made by a parent or any other party to the matter, however, the Court will only do so under certain circumstances, such as:
- where there is a conflict of interest;
- if the children’s lawyer is not acting independently or in the child’s best interests; or
- if the children’s lawyer is otherwise not performing the duties of the role correctly.
Removing a children’s lawyer can be complex and costly and will require the advice and guidance of a solicitor.
How does the Court use the children’s lawyer’s recommendations?
Although the children’s lawyer will be welcomed to share their view of the child’s best interests in relation to the case, the Court is not obligated to follow their recommendations. The Court will consider the recommendations of the children’s lawyer and all other evidence to make the final determination.
Who pays for the children’s lawyer’s fees?
Generally, Legal Aid will pay for the fees associated with appointing a children’s lawyer. However, parents may be required to contribute to the costs of the children’s lawyer, depending on their own financial circumstances.
If you are entering into proceedings around a parenting arrangement it is recommended that you have legal representation.