INDEPENDENT CHILDREN'S LAWYER

Under section 68L of the Family Law Act 1975 the court has power to appoint a solicitor to act as representative of the child. Whereas this was comparatively unusual in the past, since the case of Re K (1994) FLC 92-461 appointments have become much more frequent. In that case guidelines were set out as to when the court will appoint an independent children's lawyer. These stipulate that a lawyer may be appointed where:

there are allegations of abuse of the child
there is intractable conflict between the parties
the child is alienated from one or both parties
there are cultural and religious differences between the parents
there are concerns about the mental or physical illness or personality disorder of either parent
neither party seems to be a suitable residential parent for the child
a child of mature years indicates that they do not wish to have contact with one parent
there is a threat of removal of the child from the jurisdiction
the determination of the case may involve separation of siblings, or
neither party is represented

It is well established that the independent children’s lawyer does not act on instructions from the child and in this sense is not the child's lawyer. Rather, they gather evidence to be presented to the court to assist it in determining where the child's best interests may lie. The independent children’s lawyer may seek any orders he or she considers to be in the best interests of the child, and may choose to support or oppose the making of orders proposed by one or other parent. Naturally, this can give rise to dissatisfaction on the part of the other parent. In general it is not considered desirable for an independent children’s lawyer to interview children who have already been extensively interviewed for example by doctors, counsellors, social workers, psychologists etc.