Vulnerable children at risk as legal workforce hits ‘breaking point’

As one of the legal system’s vital safeguards for vulnerable children, ICLs play a crucial role in protecting and giving them a voice in complex family law disputes, including those involving varying forms of violence, abuse, neglect, or mental health concerns.

LCA president Tania Wolff said the model was “never properly funded from the beginning” but began to seriously deteriorate after the government’s 2024 reforms to the Family Law Act 1975, which required ICLs to spend more time with the affected children.

“While this wasn’t opposed in principle, what we said at the time, and what we continue to say now, is that you have to fund it, because there was not a single extra dollar towards funding, and it was a system that was already very much under strain,” Wolff added.

Due to the complexity of the work and the cap on Legal Aid grants, private practitioners taking on ICL work are effectively receiving an hourly rate that is “below the minimum wage – and that is before tax, rent, travel, staffing, superannuation and the many other costs”.

Kiarah Grace Kelly, director and principal solicitor of Bloom Law, said ICL matters take “hundreds and hundreds of hours” and involve sifting through large volumes of material.

“We don’t get paid for every hour we do. The hours are capped at, I would say, 10 per cent of the work that is actually required, and then the rate we’re paid for each hour is one-fifth of the market rate.

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“As I’ve seen firsthand, the panel loses very, very good practitioners because they either burn out or it’s just not commercially feasible, and law firms can only sustain that in certain times throughout their business life,” Kelly said in an interview with Lawyers Weekly.

In Western Australia, there are only 15 private practitioners available to deliver ICL services across the entire state.

In NSW, demand for ICLs in the six months following the reforms increased by an estimated 50 per cent. This is in the face of a dwindling workforce due to the “impossible” economics of it.

One ICL who reportedly volunteered to travel from NSW to the Northern Territory accepted a grant for 20 hours – in addition to completing more than those hours, the ICL did not have funding for travel, accommodation, or anything else to assist on this undertaking.

“It’s a really significant issue because we’re talking about children, we’re talking about their safety, and the result is that they are within families that potentially are unsafe and they have no one advocating for them for months on end. It is a risk,” Wolff said.

A Commonwealth-commissioned independent review of the national legal assistance funding system found recent changes “have created a circumstance where demand for ICLs is in excess of supply”.

The review’s author, Dr Warren Mundy, said there needs to be at least $80 million set aside per year to urgently address the shortfall.

“I know that’s not change in your pocket or the back of the couch, but you have got to fund the things that are necessary, and this is a necessary thing,” Wolff told Lawyers Weekly.

“No other profession would be required or expected to fund a public service out of their own goodwill, and yet, for some reason, there has been a reliance on this for way too long. The economics are making it impossible for people trying to do the work.”

The more private practitioners are driven out of the ICL system, the worse the waiting lists will look for courtrooms. Wolff said in some places, children are left waiting three to four months to have an ICL appointed and then to meet with them.

With court management systems also changing, ICLs are expected to complete more work and appear at more hearings.

Kelly said that as different pressures continue to affect families, the issues facing vulnerable children are only going to become more prevalent.

“The list of matters waiting to be allocated will get longer and longer, and the time without an ICL will get longer and longer, and it will push out the ability to finalise matters. Courts won’t be able to address their primary function, which is the just and expeditious resolution of these matters,” Kelly added.

The LCA has called for funding to be included in the federal budget – to be announced on the night of Tuesday, 12 May – but, if not, the issue is to be addressed “as a matter of urgency”.

“Unless you’re in the chair doing it and facing these issues each day, it might be hard to sympathise, but when the feedback is given, it needs to be heard,” Kelly said about the government’s role.

“It is an extraordinary subject matter that we’re dealing with, and I would hope that the system doesn’t rely on lawyers giving their time in order for the system to work.”

Wolff said many of the lawyers who have chosen to work as ICLs have a background in the child justice system, in family violence work, or around social work, “so these are people who care deeply about the children and know what it takes to deal with children in crisis, children with vulnerabilities, children suffering trauma”.

Kelly echoed this sentiment, explaining that while the work is professionally challenging, it is very rewarding.

“It can really stretch your abilities, and it is a real honour to do that work. Meeting with the children is sometimes the best part of the job [and] it’s so special to see firsthand the impact of our work, so I would encourage more lawyers to explore it as a career,” she said.

“With work that rewarding, if we couple it with being compensated properly, I think that would be really powerful.”