At an early stage in child-related proceedings, if it appears that the parties have very different ideas about the best interests of the child, the court will appoint an independent children’s lawyer to represent the child in a parenting case. Independent children’s lawyers are almost always paid for entirely by Legal Aid.
An independent children’s lawyer is appointed by the court to ensure that the best interests of the child are independently represented during the case. Although the lawyer is the child’s legal representative, the relationship between the child and the lawyer is different from the usual relationship between an adult and a lawyer (where the lawyer takes instructions from the client and argues in accordance with the client’s wishes). The independent children’s lawyer has to make such enquiries as are necessary to form a view on what would be in the child’s best interests – including obtaining an understanding of the views of the child. He or she must then argue in court, and work privately with the other parties, for a course of action that would support the lawyer’s view of the child’s best interests. The child’s best interests, as assessed by the independent children’s lawyer, will not necessarily be the same as the child’s wishes. The lawyer must also work to minimise the trauma suffered by the child due to the case and continue to work with the other parties to try to reach agreement. This type of representation is called ‘best interests advocacy’.
The child cannot dismiss the lawyer even if the child is unhappy with their performance or the conclusions reached by the lawyer. The lawyer is bound however to ensure that any relevant views expressed by the child (such as the disagreement of the child with the lawyer’s views) are brought to the attention of the court.