New 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. The guidance is quite brief and refers to three court judgments delivered over the past year by way of elaboration:
- West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam)
- X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam)
- Oxford CC -v- A Mother (Intermediary Appointment Refused) [2024] EWFC 161
We wrote about the first of these three judgments in March 2024 in the context of attempts by the senior judiciary to ‘make cases smaller’ at a time when the principles of the public law outline (PLO) had become weakened and delays in proceedings were building up. In the West Northamptonshire case, Mrs Justice Lieven had said it should be exceptionally rare to order an intermediary to be present for ‘the whole trial’. They should not be there on a ‘just in case’ basis and, in any event, should only be appointed at all if there are ‘compelling reasons’ to do so. The court should first look for other adaptations to enable the party or witness to participate fully. Lieven J commented that there had been little guidance for family court judges on how to justify the appointment of an intermediary, in comparison with guidance in criminal courts. She implied that the process around intermediaries added to delay, but didn’t say anything about financial considerations.
In X&Y, Mr Justice Williams went further, into policy matters, saying:
‘The issue however is where is it appropriate to direct the use of an intermediary as they are not to be used as some sort of safety net or security blanket by lawyers or the courts but only where their use is necessary. Like other court funded resources (whether judicial or otherwise) they are a limited resource and a resource which comes with significant costs.’
Williams J went on to quote some figures that represented high expenditure by the Court Service on paying for intermediary services.
Some wording from this judgment has been directly incorporated into the new guidance (see below).
When I was observing a care case in Cardiff Family Court in summer last year, the father applied for an intermediary to be appointed for the entirety of the final hearing (which was being listed for nine days). The lawyers for the respective parties and the judge, HHJ Paul Hopkins KC, gave very close attention to the two High Court judgments. I have written about the judge’s decision and his reasons, which he based on the rules, the case law, and the arguments that had been put before him on behalf of the parties here. He decided that it was necessary for the father to have an intermediary to enable him to fully participate in the hearing when he was giving his own evidence but it that wasn’t necessary for an intermediary to be present for the entire hearing i.e during other evidence and the lawyers’ submissions. Other participation directions had been ordered for the whole hearing. The father’s KC had argued that the Lieven and Williams judgments were fact-specific rather than ‘guidance’ and she subsequently sought leave to appeal against HHJ Hopkins’ decision on the basis that the father’s Article 6 rights to a fair trial couldn’t be complied with if he didn’t have an intermediary throughout the hearing. Permission to appeal was refused by a Court of Appeal judge, who did not agree that the judge’s decision required interference.
The third case, Oxfordshire, cited in the new practice guidance is another judgment by Williams J, although in the Family Court, not High Court. I can’t see that it adds anything new as it’s brief and, unlike the Cardiff judgment, doesn’t refer to the High Court cases at all.
We now have direct guidance from the President that in any application for an intermediary ‘there will be an expectation that the party making the application will have considered this Practice Guidance and be able to provide evidence and reasons in support of the application’. The new guidance distinguishes between three types of application:
- for an intermediary for the proceedings to include assistance in preparation and conferences (the discussions between a client and his barrister);
- for a hearing or hearings only;
- or for the witness’s own own evidence and cross examination only,
What difference is this likely to make to family court hearings?
First, we now have consistent ‘guidance’, reflecting High Court judgments when considering an application for the appointment of an intermediary, whether for parts or the whole of proceedings. However, in my experience of the Cardiff case, considerable research, evidence and reasons had been compiled five months ago on the necessity for an intermediary and had been subject to scrutiny on all sides. The impact of the High Court guidance therefore seems to have already been quite effective. I’ve not been able to find any substantive published judgments applying Northamptonshire and X&Y so I don’t know if there are similar cases around the country.
Second, the practice guidance clarifies that it applies equally to applications for assessments, appointments of intermediaries and appointments of lay advocates. Issues about lay advocates has previously been addressed by Mr Justice Keehan in the case of Re C (Lay Advocates) [2019] EWHC 3738 (Fam).
Third, the practice guidance specifically refers to victims of domestic abuse and to children as coming within the definition of vulnerable witnesses where such measures will need to be considered. However, with regard to adults, the new guidance singles out parties who are neurodiverse as a category where day-to-day practice and other types of support and reasonable adjustments should be sufficient to reduce the number of cases where an intermediary is necessary. I’m not sure on what basis this group has been specified within the general definition of vulnerable witnesses.
Otherwise, the practice guidance emphasises the points made in the recent case law on differentiating between the necessity for an intermediary to assist a witness with their own evidence and a wider role.
‘Vulnerability covers a wide spectrum. Only towards the far end of the spectrum will there be cases where an intermediary is necessary for the giving of evidence. Only at the very far end of the spectrum will there be cases where an intermediary is required for the whole of a hearing and only in the very rarest of cases will an intermediary be necessary to enable the party to give instructions in advance of a hearing or be required for conferences.’ This wording is lifted direct from X & Y.
I’m not sure whether the ‘spectrum’ is to be defined by the psychologist who undertakes the cognitive assessment, an intermediary who’s instructed to assess the contribution that intermediary service would make, or by lawyers who have experience of a range of clients with varying levels of cognitive ability. I wonder if an individual who needs an intermediary when giving instructions and participating in meetings with their lawyers would actually have been assessed as competent to participate at all.
The new practice guidance helpfully sets out the relevant rules regarding the roles and processes relating to assessors and intermediaries. Surprisingly, it doesn’t refer to the judgment on the necessity of a cognitive assessment by Lieven J in West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam) which I’d seen as complementary to the earlier West Northamptonshire judgment on intermediaries. The three cases cited are about intermediary directions only.
There’s been a critique of the guidance by John Vater KC on his chambers website here. He suggests there may be unintended consequences where cases now get longer because the skilled communication assistance of an intermediary isn’t available, so lawyers and judges have to spend more time helping a witness to participate.
In conclusion, this new guidance should be beneficial in clarifying the extent to which lawyers are required to apply the principles they have been aware of since the publication of Mrs justice Lieven’s judgment back in January 2024, as it’s certainly more succinct than the judgments. I understand that intermediaries are a scarce resource and it’s unlikely that they are going to find themselves out of work but restricting their use is obviously going to raise concerns about when it’s fair to do so. From my own observations of an intermediary in a care case recently, it’s difficult to precisely evaluate the extent of their contribution in an individual case and whether that has been ‘necessary’ or just an ‘improvement’. In the absence of independent research on what intermediaries have been doing in a range of cases, this is yet another development that seems based more on anecdote than data.