What can an ICL make me do?
ICLs (Independent Children’s Lawyers) feature in a lot of highly conflicted cases in the Family Court, and they have a special role according to the Family Law Act (and Family Court Act, the equivalent for WA unmarried parents).
Information about the ICL
When an ICL is appointed you are sometimes provided with information from the ICL or from Legal Aid (who makes the decision on who to appoint and pays their fees) about their role in the proceedings, and sometimes not.
The National ICL Association puts out some brochures about the role of the ICL –
These brochures are a good start to finding out more about the role of the ICL.
You can also look directly at the legislation that covers the appointment and role of the ICL, in particular:
- Section 68LA sets out the role of the ICL. At its core, the ICL has a duty to form an independent view about what is best for the child in the case, and act in accordance with that view. This does not mean that the ICL will agree with one parent or the other – they may disagree with both of you.
- Also in that section, it is made clear that the ICL does not represent the child, in the sense of having to do what the child wants, or persuade the Court that the child’s wishes are what should be followed.
- The ICL also has some specific duties about protecting the child from the proceedings, communicating their views and being impartial, set out in s68LA(5) – which you can see for yourself here.
ICLs do have some special powers:
- Family Counsellors and Family Dispute Resolution Practitioners (whose work is otherwise confidential) are allowed to have discussions with the ICL for the purpose of assisting them to represent the child’s interests (s10D(4)(f))
- They have a duty to report to a child welfare authority if they believe that a child is being abused. (s67ZA)
I could go on more about the best practice principles of ICLs, how they commonly fulfil their role, and what you can do if they aren’t doing a good job, but I’ll save that for another day.
What can an ICL do?
A really common question that pops up around ICLs is the “Can the ICL force me to XXX”, such as:
- Can the ICL force me to do a drug test?
- Can the ICL force me to agree to the father spending time with the kids?
- Can the ICL force me to give them my medical information?
- Can the ICL speak to my child?
The powers of an ICL can essentially come from two sources:
- the fact that they are a party to the proceedings, and so have many of the same powers as parents to do things in litigation;
- Any orders of the Court that are made granting the ICL a special power, or obliging parties to comply with certain requests of the ICL.
ICL as a party to the case
As a party to the case, the ICL is allowed to write letters to you, request disclosure and information from you, or make applications and you are obliged to respond to the ICL in the same way as other parties. For, example, if the ICL requests a document that is relevant to the proceedings (such as a child’s school report, if their attendance or performance is in issue), then you are obliged to respond in the same way as if the request was from the other party.
The ICL can also make applications to the Court, if they request your agreement to something and you don’t agree. For example, the ICL may think you should attend family therapy. If you don’t agree, the ICL can make an application asking the Court to order you to attend. They have to give evidence in support of that application just like any other party, and you have the right to respond.
Orders of the Court
A Court can also make orders granting the ICL special powers. For example:
- The ICL may be given leave to issue subpoenas;
- You may be ordered to provide the ICL with an authority for the ICL to gather information about your and/or your child from various sources such as schools and medical practitioners;
- THe ICL can seek an order that you make your child available for the purpose of reports;
- The ICL may be empowered to issue requests for random drug tests, which you are required to obey.
And of course, if the ICL wants to do something or have something happen, like coming together for a settlement conference, and all the parties agree, the ICL can arrange or carry out things out by agreement.