Published: 08 September 2017
Author: Ryan Carlisle Thomas Ryan Carlisle Thomas

It takes a village (and a healthy legal system) to raise a child

Nelson Mandela once said “There can be no keener revelation of a society’s soul than the way it treats it children.”

Did you know that 1 in 33 children (more than 45,000) are the victims of substantiated child abuse each year in Australia?

It is for this reason that we must always take time to listen to children in our community and to ensure we give them a voice in speaking up for themselves.

What is National Child Protection Week?

National Child Protection Week is this week and is designed to invite all Australians to join together as a team to keep our children safe and nurtured. It champions the prevention of child abuse and neglect, and remind us that protecting children is everyone’s business.

In a recent media release by NAPCAN (National Association for Prevention of Child Abuse and Neglect), their Deputy CEO, Leesa Waters, urges Australians to start thinking about child abuse as a problem that can be prevented rather than a problem to be fixed after the fact.

“Australians are familiar with the concept of prevention in relation to public health and safety issues such as car accidents, but may never have considered child abuse in the same way.

But if we can reduce road fatalities with changes to legislation and community campaigns, we can do the same with child abuse and neglect,” said Leesa Waters.

According to NAPCAN, proven strategies for preventing child abuse and neglect include:

  • Building strong communities where everyone understands their role in protecting children
  • Valuing children and advocating for their rights, and for their voices to be heard
  • Expanding and improving coordination of social services
  • Educating families about child behaviour, discipline, safety and development, and
  • Creating organisations that are child safe and child friendly.

How does the law help give children a voice?

The nature of the law is to protect the innocent until proven guilty, and this includes protecting innocent children. As family lawyers, we are often on the frontline of domestic violence and child abuse and there are systems set in place to help protect a child’s rights.

In legal proceedings, an independent children’s lawyer (ICL) can represent a child’s best interests and makes sure that is the focus of any decisions about parenting arrangements.

The Court can appoint an ICL under s.68L of the Family Law Act 1975, or on the application of a child, an organisation concerned with the welfare of children or any other person, to represent and promote the best interests of a child in family law proceedings.

According to the Family Court of Australia, an ICL is usually appointed by the court upon application by one of the parties where one or more of the following circumstances exist:

  • there are allegations of abuse or neglect in relation to the children
  • there is a high level of conflict and dispute between the parents
  • there are allegations made as to the views of the children and the children are of a mature age to express their views
  • there are allegations of family violence
  • serious mental health issues exist in relation to one or both of the parents or children, and/or
  • there are difficult and complex issues involved in the matter.

What is the role of an Independent Children’s Lawyer?

ICL’s are obliged to consider the views of the child, but ultimately provide their own, independent perspective about what arrangements or decisions are in the child’s best interests.

Their main roles include:

  • arranging for necessary evidence, including expert evidence, to be obtained and put before the court
  • facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case
  • acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate

An ICL will gather information to determine what is in the children’s best interests and this process may include to:

  • meet with the children. This is usually the case, unless the child is under school age, or there are exceptional circumstances
  • speak to the children’s counsellors, school teachers and principals
  • examine documents from organisations such as schools, Department of Family and Community Services, the Police, and
  • medical, psychiatric and psychological records of the children and their parents;
  • question witnesses, including parents and experts, at the final hearing; and
  • arrange for a family report from a family consultant. The ICL may arrange for a family report if required. The family report is a written report which is prepared by a family consultant who is appointed by the Court. It provides an independent assessment of the issues in the case and can help the judge hearing the case to make decisions about arrangements for the child/ren. It may also help reach agreement.

For any enquiries related to an Independent Children’s Lawyer or family law matters, please contact us on 1300 366 441.

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