Professional perspectives on ICL training and selection

Survey and interview data illustrate that ICLs and judicial officers in particular feel that improvements to the selection process could enhance the expertise of practitioners who are appointed as ICLs.

In respect of qualifications, some judicial officers described the importance of ICLs having social science qualifications, family law accreditation or suggested the development of a national ICL accreditation program:

Accreditation, preferably national. [Judicial officer, survey]

I think there should be a specific Grad. Cert. or Grad. Dip. (with option to progress to LLM [Master of Laws]) containing a significant social science component (skills-based and to provide sufficient specialist knowledge for identifying and assessing issues—but not for treating or generating response options). [Judicial officer, survey]

Regular updating is required, nationwide accreditation should be considered. [Judicial officer, survey]

I would like to see the qualifications to be more of a specialist practitioner nature. [Judicial officer, survey]

Require ICLs to hold qualifications as accredited family law specialists. [Judicial officer, survey]

Some ICLs similarly suggested that qualifications in both law and in a social science field were of benefit:

ICLs should have some other qualification—the best ones have been social workers, teachers, nurses, etc. Maturity helps!! [ICL, private practice, survey]

I doubt that a law degree and ICL training equip younger solicitors to consult with children. Many ICLs have been other things first, e.g., psychologists, social workers, parents, that probably provides a better background. [ICL, LAC, survey]

Likewise, some non-legal professionals also recommended that a background in social science could help improve ICL quality:

Anyone who is going to practice as an ICL should have a strong background in some form of social service or family work, e.g., dual degree in law and psychology or social work or social science etc. [Non-legal professional, survey]

In contrast, a number of ICLs were concerned about the ICL role developing in a direction where social science qualifications would be required to facilitate consulting with children/ young people to ascertain and interpret their views. For example:

We need to be careful we don’t continue a growing culture of lawyers thinking they are trained to interpret kids’ responses to questions about their circumstances. These cases involve very complex dynamics, and unless lawyers want to have dual qualifications as social scientists, we should stop meeting kids to do anything other than explain role[s] and explain orders. [ICL, private practice, survey]

Some ICLs also suggested that ICL training was a means by which greater consistency in ICL practice could be encouraged, particularly regarding the purposes of direct contact with children/young people:

I recently took part as a trainer in a training course for new ICLs, and there seems to be a misunderstanding about the role of the ICL being an expert rather than a lawyer. I have noticed that some practising ICLs take a view that they are there to find a way to facilitate a child’s wishes and appear to communicate that to the child. There needs to be training made available about the impact on a child of being given false expectations, and also how to explain to a child that they have actually been heard but the reasons they have not been granted their wishes. [ICL, private practice, survey]

90 Australian Institute of Family Studies Chapter 6

One ICL suggested that rather than teaching lawyers a range of other skills, perhaps there were more benefits to be found in ensuring that ICLs were ultimately good lawyers:

I think fundamentally, as lawyers, we need to be very careful not to try to be something we’re not. Whilst training on everything from attachment theory to psychiatric illnesses to the psychopathology of sexual abuse is valuable because it helps to inform the way we approach evidence and the way we conceive arrangements for children, I don’t think that any amount of training fundamentally alters the fact that an ICL is a lawyer. If there is a desire for us to spend more time working with children—directly working with children—there would need to be a huge amount of work … I think if you’re looking at how you train lawyers and how you improve the ability of a lawyer to deliver that service, what you do is you look at two things. You look at how to make them better lawyers, because chances are they’re going to do their job better if they’re better at being lawyers. Whether that’s advocacy or evidence, whether that’s drafting documents, whether that’s understanding the law, whether that’s introduction to some of the more difficult areas of the law or whether that’s in the more social science camp of, as I said, things like attachment theory and how to read a psychiatric assessment. [ICL, LAC, interview]

This perspective is also reflected in the following comment from an non-legal professional, who was conscious of the need to ensure that assessments being made in relation to children should be made by the professional with the most appropriate expertise:

I am not sure [ICLs] need to know all … things—I am the expert and I would expect that I would be making an assessment of many of those matters [for example, identifying, assessing and responding to risks of abuse, violence or other harm/safety concerns]. [Non-legal professional, survey]

More generally, some ICLs suggested that there were elements of the ICL role that were difficult to teach; for example, good judgment and a sense of the dynamics of different family situations. In that context, some ICLs suggested that a more comprehensive selection process could help with ensuring that lawyers who become ICLs have those important personal characteristics. To this end, the training, experience and qualification requirements informing the selection criteria were identified by ICLs as issues requiring further consideration. For example:

In my experience, there are still a lot of ICLs that do not have the right approach in dealing with children or understanding them. It is quite specific. The criteria should not just be that a person has practised in family law for a particular period that might qualify them. It doesn’t follow that they will make a good ICL. ICLs need a range of skills that isn’t just about practising the longest. Not enough stringent criteria is applied and there is not enough ongoing scrutiny. There is also not enough support for ICLs from other ICLs. Legal aid needs to more active in this regard and I think in recent times, there has been much better leadership on this issue. [ICL, LAC, survey]

The importance of an ICL’s personal characteristics was also reflected in the following comments from non-ICL lawyers:

[It] might also be extremely helpful to undertake tests on applicants for ICLs to ensure they are empathetic to their clients and parents; that is, not just the legal qualifications to perform the job, but also the disposition to handle this sensitive work. [Non-ICL lawyer, private practice, survey]

Many of the best ICLs seem to have a “feel” for the work in terms of attitude and personality for the job. Training is of limited assistance. [Non-ICL lawyer, private practice, survey]

A number of legal aid commissions also acknowledged the challenges of the ICL selection process and, in particular, the difficulties of maintaining a pool of practitioners who meet the formal qualifications as well as possess a suitable array of personal qualities to perform the role well. The following comment from Legal Aid NSW is indicative of this challenge:

[It] is quite difficult in a large state to work out, to assess, people’s capacity in terms of them being appropriate as ICLs … They would undertake the national training program and [may possess significant post-admission experience]. Now we have started

Effective practice: Training, selection, professional development and supervision

interviewing in some processes, and interviews are a way of trying to make sure people have adequate communication skills, because communication skills are a really big part of the role … It’s actually much more difficult than you think to cull people out and say to them … “Look, you know, we don’t think your communication skills are up to scratch”. [Legal Aid NSW, interview]