Operating as both a Family Dispute Resolution Practitioner (FDRP) and Independent Children’s Lawyer (ICL) has given me a unique insight into the role of the ICL in Family Dispute Resolution (FDR). My experience is that every ICL has a different approach to FDR and works towards very different outcomes. This leads me to ask the question- What should you expect from an ICL in FDR?
The ICL’s role
The Guidelines are clear that the ICL is a professional role as skillful, competent, impartial best interests advocate. They are to assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the best interests of the children. They are to encourage the parties and their legal representatives to be non-adversarial where possible, to maintain a focus on the children’s best interests, and to promote this approach wherever appropriate. They should at all times work towards a timely resolution of proceedings that is consistent with the best interests of the child.
The ICL is to act as “honest broker” on behalf of the child in any negotiations with the other parties and their legal representatives. They should develop opportunities for the matter to reach an agreed outcome which best promotes the children’s best interests. They should bring to the attention of the court any facts which, when considered in context, seriously call into question the advisability of any agreed settlement.
FDR is not specifically mentioned in the Guidelines, but with the lengthy court delays and clogged lists, many matters are being referred to FDRS (the family mediation service operated through Victoria Legal Aid) and private mediation, for interim and final settlement attempts. This can be particularly successful when specialist reports have been prepared and parties have experienced the limitations of the court system.
I was recently involved in an FDRS Conference which involved an ICL. The matter involved two young children and interim orders had been in operation for some time that involved a progression of time for the father from professionally supervised time (over a six month period) to some limited day time supervised by the paternal grandmother (about four months). These orders had been made at a time when the parents were experiencing considerable conflict and there was a lack of trust by both about the motivation of the other.
At this subsequent conference, the parties arrived together (the father had gone out of his way to collect the mother to assist her in travelling the considerable distance to the conference venue) and they had begun to demonstrate the capacity for collaboration about the most appropriate ongoing parenting arrangements. They both indicated that they were prepared to consider a further progression of time towards overnight time, with the paternal grandmother continuing to be present during any overnight time. Both were legally represented at the conference and were facilitated by their lawyers in engaging in child focused and age appropriate discussions.
I was not involved in the initial conference where the interim arrangement had been reached. It is my assumption that the need for supervision was based on:
• The very young age of the children;
• The lack of time that had been spent by the father with the children to that date, particularly with the younger child;
• Concerns about the father’s parenting capacity and ability to meet the needs of the child;
• Conflict that the children may have been exposed to around the time of separation.
Since then, there had been a report from the professional supervisor raising no ongoing protective concerns for the children in the father’s care. The time had progressed with the paternal grandmother supervising, and at the conference:
• The children were older
• The father had spent regular time with the children over a period of time
• Neither party nor the supervisors were raising any concerns about the father’s care of the children to date
• The parents appeared to have to some extent resolved the issues between them and to be able to communicate about the children to some extent.
In this matter the ICL would not support the arrangement proposed by the parents, nor any variation of this that was suggested by the lawyers. Their position was that they required the benefit of a Family Report before they would be prepared to agree to any variation of the current arrangements.
The parents and their lawyers were very disappointed at the outcome of this conference. The father had foregone his next visit with the children to change his roster to be present for the conference. His lawyer had travelled from interstate to be able to support him in person at the conference. The mother was left wondering what all this meant for her emerging parenting relationship with the father, and the ongoing court proceedings. Her lawyer now had to consider preparation for the next court event.
The most important aspect for me involved the need to be well prepared for a conference, and for the ICL to ensure that if they had some requirements, these were well addressed prior to the conference. In the event that further progress cannot be made without a Family Report, then FDRS should not be booked until this is available. In this case the parties made an assumption that if they agreed to what they thought was in the best interests of their children, then this was likely to be supported by the ICL. This could have been communicated to the ICL in advance to receive an indication of whether such a proposal might be supported if agreed by both parents at the Conference.
This example also raised for me the question of the role of the ICL as “honest broker”. This should include:
• providing an opportunity for negotiation by correspondence, at court events, or mediation/FDRS
• indicating the factors that they consider relevant to the best interests of the children in a particular situation, and how these could be managed in an appropriate and acceptable way
• suggesting steps or protective measures that might need to be included for support to be given to agreements proposed by the parents
• obtaining expert evidence where there are concerns raised by either the parents or others involved with the children, and advising the parents what this evidence might mean for the development of appropriate proposals for settlement
• being clear as early as possible what their recommendations might be whether on a short term, medium term or long term basis
• working with the parents and lawyers to provide hope for a future solution, rather than appearing obstructive and prolonging the adversarial litigation system.
If you work with ICLs or as an ICL please share with me your thoughts as to their role in FDR. Only with this clarity can all participants have reasonable expectations of this process and maximize the likelihood of a successful outcome.