We wrote last year about a hearing I attended in Cardiff Family Court about the necessity for an intermediary to assist a father in a fact-finding hearing. We were therefore interested to see recently listed an appeal against a decision made by a judge in a different court that an intermediary was not necessary to assist a mother in similar circumstances.
An intermediary is someone appointed by the court, under Part 3A of the Family Procedure Rules, to help a vulnerable witness fully participate in the proceedings by assisting them with communication.
I watched this hearing on the Court of Appeal live stream on 18 March. The video can now be viewed here. When the judgment is published, we’ll update this post. It’s unlikely the judgment in the fact-finding hearing will be published though, so we won’t know the outcome for this child and his family.
Giving permission to appeal, Peter Jackson LJ had said that an appeal would allow the Court of Appeal to consider recent High Court decisions and Presidential Guidance on the appointment of intermediaries. The forthcoming judgment should therefore be helpful in synthesising the High Court judgments of Lieven J (West Northants) and Williams J (Re X & Y) that were applied in the Cardiff case I observed, and the President’s recent guidance,
I was quite taken aback by the different approaches taken by the judge in Cardiff in August 2024 (who decided an intermediary was necessary for the father’s evidence, but not for the whole trial, as his lawyers had argued) and the judge in Kent in January 2025 (who decided an intermediary wasn’t necessary at all). In some ways the circumstances of the cases were similar, although the Medway hearing seems to have more complex medical evidence (that the mother will need to engage with) and the mother has greater communication difficulties than the father in Cardiff. It’s vital however in any case like this, about who has caused an injury, that the parents are able to fully participate in the fact-finding process. At the Cardiff hearing, the judge had carefully considered the court rules about vulnerability and participation; written and oral submissions on behalf of all the parties; evidence in the psychologist’s report and the intermediary assessment; his own observations of the father in court; the participation directions that were agreed (e.g short days); and the two High Court judgments. The hearing, which was on the single issue of the necessity of an intermediary, took place over two hours, at a pace appropriate for the father to follow. As far as I could tell from the descriptions of the Medway hearing, the intermediary application was one of a wide range of case management decisions that were made within an hour.
I don’t know which approach is more typical, but perhaps the professional bodies who were intervening had also come across disparities across the country and will welcome clarification from the Court of Appeal.
Re M – appeal against a decision by HHJ Thomas in Medway Family Court
The appeal was brought by the mother in the care proceedings, supported by the local authority, the child (via his Cafcass guardian), and the maternal grandmother. The father and the maternal uncle (who are involved in the care proceedings) weren’t appellants but weren’t opposing. Somewhat confusingly, the grandmother and uncle are called intervenors because they were not directly named as respondents but are legally represented as they are in the ‘pool of perpetrators’. There were also two more arm’s length intervenors at this appeal, the Association of Lawyers for Children and the Family Law Bar Association.
In my position as a legal blogger, I requested copies of the grounds of appeal and the various skeleton arguments ahead of the hearing, which were useful in understanding the issues. There was some sort of miscommunication regarding my request for the documents from the ALC and FLBA and I haven’t actually seen those.
The care application centred on a serious head injury suffered by a one year old child in January 2024. The child had been living with his mother, father, maternal grandmother and teenage maternal uncle. He is currently living with an aunt in a different household, under an interim care order. The issue is who was responsible for inflicting the injury, so that his future welfare can be decided. One of the reasons for the delay in listing a fact finding was that there were masses of phone records still to be scrutinised.
The 22 year old mother, who has never lived independently, had been diagnosed with ADHD and ASC as a teenager and the local authority were concerned about her ability to understand and retain information, noting that she seemed reliant on her mother to advocate for her in meetings. A cognitive assessment by a psychologist in May 2024 found that while the mother did not have a general learning disability, she had limited vocabulary, limited auditory working memory, limited literacy skills and could be restless, distractible and easily fatigued. She also suffered from PTSD and depression. The psychologist said that an assessment of whether the mother needed an intermediary throughout court hearings was essential. The mother’s lawyers, supported by the local authority, applied for an assessment by an intermediary; this was allowed by the court in June. The assessment, dated July 2024, concluded that the mother’s communication difficulties could not be sufficiently addressed by participation directions and the Advocates’ Gateway, and that an intermediary was required for the whole fact-finding hearing, including conferences with counsel (meetings between the mother and her lawyers). This reflected the particular needs of this client, in comparison to the client I mentioned above in the Cardiff case, who held down a full-time job and could cope in face-to-face meetings with his lawyers; that application resulted in a direction for an intermediary during the father’s evidence only. However in the Medway case, at a case management hearing in January 2025, HHJ Thomas decided that the presence of an intermediary would not be necessary for any part of the fact finding (listed for February, but adjourned now because of the appeal).
Oddly, an intermediary had been assisting the mother and the court at two previous hearings, and was present at the interim hearing where this decision was made that in future she wouldn’t be necessary. The judge didn’t ask her any questions, nor did he want to hear submissions from the other parties on the ‘necessity’ question. The intermediary has been described as having had a very hands-on role with the mother, especially in being able to explain matters to her through use of pictures and diagrams. The mother’s closest relationships are with her own mother and with the child’s father, but she can’t rely on them to provide intensive support to her because they are parties and separately represented.
Grounds of appeal
These were:
- The Court was wrong in law to determine an intermediary is not necessary for the mother;
- The Court was incorrect in its application of the relevant legal principles;
- The Court was wrong in law to not properly consider the available evidence in determining an intermediary was not necessary; and
- The Court failed to consider the facts and issues of the case in determining an intermediary was unnecessary for the mother.
I’ll set out a few points made by the barrister:
The mother’s lawyers argued that the necessity for her to have an intermediary did fall within the guidance in the case law (the Lieven and Williams judgments ). Even if an intermediary for entire proceedings is ‘rare’, they argue this mother comes into that category. They said that the test is which participation directions are necessary, rather than starting with ‘exceptionality’ (which is the sort of language used in the recent case law).
The judgment in January 2025 (there seems to be some doubt as to whether it was a ‘ground rules’ hearing or not) did not set out what support, if any, the mother required in order to participate in the proceedings and give her evidence. The judge had not mentioned any specific support that would be provided. Although he referred to there being several tools available to the Court such as use of simple language and regular breaks, he did not specify which tools would support how she would participate and give evidence. Having directed that she shouldn’t have the benefit of an intermediary at future hearings, the court would be unable to call upon the advice or assistance of an intermediary in formulating participation directions.
Lieven J had said in West Northants that the appointment of an intermediary for the entirety of proceedings would be exceptionally rare and that there must be compelling reasons to appoint an intermediary at all. Williams had said that only toward the far end of the spectrum will an intermediary be necessary for a witness to give evidence. The mother’s lawyers argued that neither of these principles was directly applied by HHJ Thomas when he decided that an intermediary was not required at all.
There was plenty of evidence available to the court of the needs the mother had for the assistance, in the professional reports and the interaction she had with her lawyers and her mother, and with the intermediary in previous hearings. There was some suggestion that the judge did not read the intermediary assessment until the day of the hearing, although it had been completed six months earlier, although I’m not sure about this point.
The complexities of the case had not been taken into account by the judge e.g. the possibility of ten medical experts, the position of the two intervenors (the grandmother and uncle), analysis of thousands of pages of phone disclosures. There were still questions about when the case would be ‘trial ready’ as there were doubts about the uncle’s litigation capacity to be resolved as well as the full record of the phone messages. There would therefore be pressure on the mother to comprehend issues at quite short notice.
That’s an outline of the arguments put forward by the lawyers for the mother, supported by the lawyers for the child, the local authority, and the maternal grandmother. As I don’t have the skeleton arguments by the ALC and the FLBA, I don’t know what they said, although the other lawyers mentioned these submissions to indicate that they agreed with them, and the court did comment at the end that their submissions had been ‘extremely helpful’.
Decision
The Court of Appeal panel of judges were very live to the urgency of resolving all this for the child and his family because they asked early on that the lawyers agree a draft order, if they were minded to grant the appeal. They wanted to know what all the parties wanted substituted for HHJ Thomas’s order to be able to progress the case – they weren’t just going to send his order back to the family court to reconsider.
The Court decided to grant the appeal and set aside the order of 15 January with regard to use of an intermediary.
The new order is that an intermediary is appointed to assist the mother during all case management hearings up to the fact- finding hearing, and for the whole of the fact finding, including hand down of judgment. She is also appointed for all conferences that take place in the court building on the occasions of those hearings. This is all to be funded by HMCTS. A new application would need to be made if an intermediary is necessary later, at the welfare stage or for conferences away from court.
Comment
I got the impression that the lawyers were all knocking on an open door in both aspects of this appeal: that HHJ Thomas’s judgment appeared sparse, with no one able to find his reasons for denying the application for the intermediary, at least for part of the fact finding, for such a very challenged parent. Or what he was proposing to put in place to support her instead. Second, there seemed to be general dissatisfaction with the status of the two High Court judgments and the President’s guidance. There were more references by barristers in this hearing to ‘gloss’ than you’d hear in a furniture polish commercial. I sighed when some the judges said that intermediary assessments always call for an intermediary and that cognitive assessment are always too long. Fortunately King LJ did say that the appropriateness and diligence of the intermediaries in this case were ‘obvious’.
King LJ also at one point commented that HHJ Thomas making so many case management decisions ‘all done in an hour’ provided a good picture of the pressures the courts are under.
We were told that the mother in this case and her mother were sitting in the court room (although not in camera view). Fortunately, a few of the lawyers present seemed to know them personally, so let’s hope there was some helpful communication for them during the lunch break and at the end of the day.
Although the court communicated its decision on the day, it will deliver its reasons in writing on a later date. That is likely to tell us more about why the appeal was allowed and is likely to provide some help with the various high court judgments and guidance relating to the appointment of intermediaries.
We have a small favour to ask!
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