THE INDEPENDENT CHILDREN’S LAWYER IS TERRIBLE – SO HOW DO I GET THEM REPLACED?

In the 2023 case of Stanhope v Stanhope, the Family Court of Western Australia dealt with the father’s application for the independent children’s lawyer (”ICL”) to be discharged. The father alleged that the ICL was not:

  1.  Impartial; or
  2.  Professional; or
  3.  Capable of adequately doing her job and advancing the best interests of the child.

The Court reminded itself of the role and responsibilities of an ICL. Section 68LA(2) of the Family Law Act sets out in some detail the role and responsibilities of the ICL. The ICL must form “an independent view, based on the evidence available…, of what is in the best interests of the child.” Section 68LA(5) requires the ICL to act impartially in dealings with the parties.

It is the duty of the ICL to fully put before the Court the wishes of the child. But, in doing their job properly, this may mean the ICL must submit it is not in the best interests that the child’s wishes be acceded to by the Court.

The ICL is not bound to make submissions on the instructions of the child, because the ICL is not the child’s legal representative.

The Independent Children’s Lawyer must form the view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view. In a sense, the ICL’s role is broadly analogous to that of Counsel assisting in a Royal Commission in the sense that his or duty is to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the Court of a particular course of action. The ICL’s advocacy role is a little unusual because:

(a) The ICL is not appointed by the party that he or she represents.

(b) That the ICL may not be removed by their client; and

(c) The ICL does not necessarily advance what the client wants, but what is in his of her view, in the best interests of the child.

That the Court should be very slow to charge an ICL, especially on the basis of largely unsubstantiated complaints of one of the parties, because:

(a) There is a need for the ICL to retain his or her impartiality, and to be fair to all concerned. However, that does not mean that he or she must take steps or not take steps in a proceeding simply because one of the parties does or does not want the ICL to take that step.

It would be an intolerable situation if a party could successfully apply to have an ICL removed simply because that party perceives that the ICL was not “on their side.”

An application to remove an ICL is not strictly covered by the principle that the child’s best interests must be treated as the paramount consideration. An ICL should be removed if there are proper reasons for doing so. Those reasons include where:

(a) The evidence shows the ICL has deliberately mislead the Court;

(b) The ICL has behaved in an unethical or unprofessional way;

(c) The ICL has acted contrary to the child’s interests.

(d) The ICL has shown bias against a party (and that may be actual bias, or apprehended bias);

(e) The ICL has acted incompetently; and

(f) There is a conflict of interest.

In dealing with Mr. Stanhope’s application, the Court was not satisfied that:

(a) The ICL had deliberately mislead the Court;

(b) The ICL had shown bias;

(c) The ICL found herself in a conflict of interest;

(d) The ICL acted incompetently or in an unprofessional way;

(e) Finally the Court rejected the father’s submission that the ICL had acted contrary to the child’s interests.

The father’s application was dismissed.

Navigating family law complexities requires a nuanced understanding of the ICL’s responsibilities. If you are grappling with similar concerns or seeking guidance in family legal matters, our experienced team is here to provide personalized support. Reach out to us today to ensure your child’s welfare remains the top priority throughout the legal process.

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