The Court of Appeal provided important guidance on the use of intermediaries following a mother’s successful appeal against a decision to refuse her application for intermediary assistance in care proceedings.
The Facts:
- In January 2024 the mother’s baby suffered a skull fracture at the age of 10 months and care proceedings commenced.
- The mother was in her early 20’s and had been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder and Asperger’s syndrome. She also suffered from anxiety and depression and had been prescribed antidepressants by her GP.
- At the time of the decision under appeal an 8 day fact finding hearing was due to begin.
- The social worker described the mother as presenting with cognitive difficulties and expressed the view that she was likely to require significant support to participate in proceedings.
- A cognitive assessment recommended that an intermediary was essential and that the mother would find giving evidence very stressful given her general personality, cognitive processing issues and her autistic spectrum diagnosis.
- A Communicourt assessment recommended that the mother be assisted by an intermediary throughout the proceedings, including at conferences.
- The mother attended the next hearing with an intermediary and the judge approved the attendance of the intermediary for that hearing and future hearings and decided that the need for an intermediary at the fact-finding hearing would be considered at a pre-trial review which could also act as a ground rules hearing.
- At the pre-trial review, the mother submitted that she continued to need an intermediary both for the fact-finding hearing and in relation to the preparation of her written evidence in order to understand the proceedings and to give her best evidence.
- The judge decided that an intermediary was not necessary for the trial and the court was capable of ensuring that the mother was able to participate fully in the proceedings and give her best evidence. The judge noted that the purpose of an intermediary was to ensure full participation pursuant to Part 3A FPR and PD3AA and concluded that the mother was a vulnerable individual. He also addressed the question of necessity and noted that an intermediary was one of the many tools in a court’s arsenal. However, the judge also relied on various propositions from the decision in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam) including that the use of an intermediary for the whole trial ‘should be exceptionally rare’; and from Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) that ‘only towards the far end of the spectrum will there be cases where an intermediary is necessary for the giving of evidence’.
- The mother appealed on the basis that the judge had not applied the relevant legal principles correctly and had not properly considered the available evidence in respect of her vulnerability or the facts and issues in the case. The appeal was supported by the respondents.
The Appeal:
- The Court of Appeal held that although the judge had the provisions of Part 3A FPR in mind and the test of necessity, he had also taken into account obiter statements of the High Court which focussed on the rarity of cases in which an intermediary should be ordered. That was not the correct approach.
- As a result of the misdirection, insufficient attention was given to the mother’s difficulties, considered in the context of proceedings. The evidence in respect of the mother’s functioning was not reconciled with her ability to participate meaningfully and without undue distress.
- In addition, there was no explanation of how it could be fair for the mother, or her counsel, to be expected to manage without a key element of the support structure that had been available at previous hearings.
- The possibility of intermediary support for other purposes (e.g. in relation to the preparation of the mother’s written evidence) was not considered, and other forms of adjustment were mentioned only in passing. There was no determination of what such arrangements would be and why they would be sufficient. An assurance that the court would ‘strive at all times to ensure that the mother participates and understands’ was inadequate.
- The available information clearly established that this vulnerable mother needed an intermediary, at least for the court hearings until the end of the fact-finding process.
- The Court of Appeal therefore allowed the appeal and substituted an order substantially granting the mother’s application
Legal Principles:
- The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing.
- Supplementing the test of necessity with concepts of rarity or exceptionality is unwarranted and incorrect. A requirement for ‘compelling reasons’ as referred to in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam) is not the correct test. Having regard to ‘very rare’ or ‘rare cases’ when an intermediary might be required as in Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) is not the correct approach.
- Decisions are person-specific and task-specific.
- Intermediaries are not expert witnesses and are not appointed under Part 25 of the FPR, although a decision about whether an individual should have an intermediary is important and the court should approach it with formality. Intermediaries should not be appointed on a ‘just in case’ basis, or because it might make life easier for the court.
- An application for an intermediary must have an evidential basis, such as a cognitive report and, if directed, an intermediary assessment. Evidence may also come from the social worker and Guardian and the court may hear submissions on behalf of the vulnerable person. Advocates should have the skills to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act. Identifying and making adjustments for vulnerability is a collaborative task.
- If a cognitive assessment recommends the use of an intermediary, it must evidence why that is necessary and explain why alternative means are inadequate. It would be useful for the report to consider the party’s participation at case management hearings, legal conferences, and when giving evidence. If the court then approves an intermediary assessment, the cognitive report should be supplied to the assessor.
- If an intermediary assessment is granted, and the recommendation is for intermediary assistance, there should be clarity about what kind of order is being sought e.g.. which hearings an intermediary would attend and whether an intermediary is required for other legal meetings inside or outside the court building.
Finally, it’s worth mentioning that the Practice Guidance: The Use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court was issued by the President of the Family Division on 23 January 2025, a week after the first instance decision in this case. The Court of Appeal considered the guidance in its decision, and took the view that notwithstanding the useful guidelines in respect of cognitive assessments provided at paragraphs 16 and 17, references to the concept of ‘rarity’ in respect of the appointment of intermediaries at paragraphs 10 and 12 were subject to the same reservations the court had expressed in relation to the obiter views in Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) and West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam).
