An appeal judgment has just landed in our inboxes on the correct approach to the use of intermediaries in care proceedings: Re M (A Child: Intermediaries) [2025] EWCA Civ 440. We wrote a post a couple of weeks ago when we became aware that this appeal was in the works. The recording of the live stream from the Court of Appeal hearing is available here.
The judgment comes within a context of increasing pressure on the family justice system, and increasing pressure upon judges to manage cases proportionately (both in terms of time and money).
What is an intermediary?
First off: what is an intermediary? In short, they are communication specialists. They are frequently used in family proceedings to help vulnerable people to participate within the proceedings, to understand what is going on, to communicate within the courtroom and to put to their views across.
I’m told that back in the day (well before my time!), it was quite usual for a paralegal or legal assistant from the relevant party’s solicitors’ firm to attend with the barrister and help with the sorts of things an intermediary would now help with (i.e. helping the client to understand what is going on while the barrister addresses the court). Unfortunately, increasing pressure on public funds has made that practice pretty much impossible in care proceedings.
The issue of intermediaries has been a hot topic amongst lawyers recently because of the apparent crackdown on their usage in care proceedings. Long-gone are the days where the court would give the most perfunctory consideration to an application for an intermediary before granting it and moving on to the next issue.
We wrote on the blog over a year ago about the push to ‘make cases smaller’, and pointed to the judgment of Lieven J in West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) ( [2024] EWHC 79 (Fam). An article in Local Government Lawyer at the time warned that if the guidance by Lieven J was followed, “it is anticipated that significantly fewer intermediaries will be appointed in the Family Court…” I’ll come back to this case below because the Court of Appeal had a fair bit to say about it…
Anecdotally, since then, judges have been scrutinising applications for intermediaries with far greater care rather than simply rubber-stamping a fait accompli.
Background
This case was about a skull fracture to a 10-month-old baby who, at the time, had been living with his parents and other family members. The care proceedings were triggered by the unexplained injury. The court listed a fact-finding hearing to work out how the child was injured.
During the proceedings, Dr Dowsett, a clinical psychologist, did a cognitive assessment of the mother to explore whether she had any particular cognitive or learning difficulties that might affect her participation in the proceedings. He recommended that she should have an intermediary’s assistance in court.
Off the back of that recommendation, the mother applied for an intermediary assessment from Communicourt, which was granted. Communicourt assessed the mother and also recommended that she be helped by an intermediary throughout proceedings, including in meetings with her lawyers. The worker from Communicourt said:
- “[the mother’s] difficulties are likely to significantly impact her effective participation in legal proceedings and, in my professional view, cannot be accommodated by adjustments which can be practically implemented by the court in lieu of an intermediary (such as those set out in Practice Direction 3AA, including use of techniques provided in The Advocate’s Gateway).”
- The court subsequently approved the attendance of an intermediary at hearings to assist the mother.
- A pre-trial review ahead of the fact-finding hearing then took place. The mother’s application for an intermediary was one of the issues to be dealt with, and none of the parties thought that it would be a controversial application.
- In fact, the Communicourt assessment had not been in the court bundle and was sent to the judge mid-hearing. The judge then seems to have given quite cursory consideration to the application (about 10 minutes of court time was dedicated to the issue) and did not hear submissions from any of the parties except the mother’s barrister.
- In a decision which then, no doubt, took all the lawyers present by surprise, the judge determined that an intermediary was not necessary for the fact-finding hearing. The judge said:
- As far as I am concerned an intermediary is not necessary for this trial. These matters that the intermediary assessor has set out are matters that are well within the capability of the Court to ensure that [the mother] is able to participate fully in the proceedings and give her best evidence. The Court can ensure, and will ensure, that questions are asked that are noncomplex, nonlegal and that [the mother] participates and understands. This Court is ever mindful of the vulnerabilities of those that appear before it and will strive at all times to ensure that they are given every opportunity to participate and it seems to me that an intermediary is not necessary in this case, bearing in mind the other directions that are available.
- The mother appealed that decision. She argued that the decision was wrong because:
- The legal principles had not been correctly applied;
- The judge had not properly considered the available evidence about the mother’s vulnerability or the facts and issues in the case.
- The Court of Appeal granted the mother’s appeal and concluded that the judge’s decision was wrong.
The applicable law
The Court of Appeal was clear that intermediaries will be appointed when and to the extent that they are necessary, and not otherwise. The applicable legal framework is set out in Part 3A of the Family Procedure Rules 2010, and in Practice Direction 3AA.
I will not delve into the Court of Appeal’s extensive journey through the case law and guidance within the judgment, but I will focus on its observations in respect of a few significant cases.
The Court of Appeal noted the guidance given by Lieven J in West Northamptonshire, which I referred to earlier. In that case, Lieven J quoted extensively from a criminal case called R v Thomas (Sean) [2020] EWCA Crim 117. In her view, that case was applicable to the family justice system. Some of the principles she drew from that case (and others) included:
- It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial.
- Intermediaries should only be appointed if there are “compelling” reasons to do so.
- If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary.
The Court of Appeal did not think that the decision in Thomas is helpful to family practitioners in interpreting Part 3A of the Family Procedure Rules. It also did not think it was helpful to add a gloss to the test of ‘necessity’ with concepts like ‘rarity’, ‘exceptionality’ or ‘compelling reasons’.
The Court of Appeal had similar concerns about the judgment of Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam), in which Williams J remarked that:
“In rare cases an intermediary may be necessary to assist the party to understand the evidence of others. In very rare cases an intermediary may be necessary to enable the party to consider the written evidence and to give instructions.”
Again, the Court of Appeal seemed to find glosses such as “very rare” and “rare” unhelpful, noting that those references are “not a substitute for a straightforward application of the rules”.
We lawyers love our lists and at para. 7 of the judgment, the Court of Appeal helpfully sets out a 9-point checklist on the approach to be taken by courts in deciding whether and, if so, for what purpose to approve the appointment of an intermediary.
- The court will exercise its judgement within the framework of Part 3A of the Family Procedure Rules 2010 (‘the FPR’) and Practice Direction 3AA. These provisions are not complex, and they require very little elaboration. Their relevant parts appear in the Annex below. By following them, the court will steer a path between the evils of procedural unfairness to a vulnerable person on the one hand, and waste of public resources on the other.
- The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing. Decisions are person-specific and task-specific, and the introduction of other tests upsets the balance struck by the FPR and may draw attention away from the circumstances of the individual case.
- Efficient case management will assist sound decision-making in this area. There must be early identification of vulnerability where it exists. Intermediaries are not experts, but applications for intermediary support should be approached with similar procedural discipline. Different considerations may apply to different elements of the proceedings, and the court should normally require an application notice and/or a draft order that specifies the exact extent of the requested assistance.
- Correctly understood, the court’s powers are wide enough to permit it to authorise intermediary assistance for legal meetings outside the court building. However, support that is necessary in the courtroom may be unnecessary in a less pressured setting. Accordingly, the court should give separate consideration to any application of that kind.
- The Family Court is accustomed to using checklists when making procedural and substantive decisions. The mandatory checklist in FPR rule 3A.7 is an essential reference point to ensure that the factors relevant both to the individual and to the proceedings are taken into account. The weight to be given to them is a matter for the court, making a broad and practical assessment.
- An application for an intermediary must have an evidential basis. This will commonly take the form of a cognitive report and, if authorised, an intermediary assessment. Other evidence may come from the social worker or the Children’s Guardian. The court can also take account of submissions on behalf of the vulnerable person, and from the other parties, as they may have their own perspectives on the overall fairness of the proceedings. This reflects the collaborative nature of the task of identifying and making adjustments for vulnerability. Whatever the evidence and submissions, it is for the court, and not others, to decide what is necessary to achieve a fair hearing in the individual case.
- When considering whether an intermediary is necessary, the court will consider other available participation directions. In some cases they will be effective to secure fairness, so that an intermediary is unnecessary, or only necessary for a particular occasion, while in other cases they will not. The court is entitled to expect specialist family lawyers to have a good level of understanding of the needs of vulnerable individuals in proceedings and an ability to adapt their communication style. It will consider what can reasonably be expected of the advocates, and in particular of the vulnerable party’s advocate in the individual case, bearing in mind that professional continuity may not be guaranteed. Intermediaries should clearly not be appointed on a ‘just in case’ basis, or because it might make life easier for the court, but equally advocates should not be required to stray beyond their reasonable professional competence to make up for the absence of an intermediary where one is necessary.
- The rules provide that the reasons for a decision to approve or refuse participation directions for a vulnerable person must be recorded in the order. That can be done very briefly, and it is a further useful discipline.
- The approach described should ensure that intermediaries are reliably appointed whenever they are necessary, but not otherwise.
What went wrong in this particular case?
The first-instance judge clearly drew upon the propositions in both West Northamptonshire and Re X and Y in coming to his decision. The Court of Appeal concluded that the judge had, as a result, fallen into error. The Court of Appeal noted (amongst other things) that:
- Even though the judge stated that the test was one of ‘necessity’, he was strongly influenced by the emphasis on ‘rarity’ in the case law (which I’ve referred to above). This meant that he did not pay enough attention to this particular mother’s difficulties. He did not engage sufficiently with the evidence of Dr Dowsett or Communicourt, or explain why he was rejecting their opinions.
- The judge did not get the views of any other party, all of whom supported the mother’s appeal for their own reasons.
- Mother’s barrister told the Court of Appeal that her task in conducting the trial was “near impossible” in the absence of an intermediary.
- The judge did not take account of the gravity of the proceedings. The worst-case scenario here was that the court might make findings against the mother (including that she harmed her baby) which could prevent her from caring for this child, or indeed any other child. A fact-finding hearing is often highly emotionally charged. The judge did not consider how that would impact on the mother’s experience of the proceedings.
- The judge did not consider any alternative arrangements to be put in place instead of an intermediary.
What now for the future of intermediary support?
Re M is definitely something of a course-correction following the judgments in West Northamptonshire and Re X and Y. It is also yet another example of the ongoing tension within the family court between dealing with cases fairly, and dealing with cases expeditiously and with an eye to the public purse.
No doubt lawyers representing vulnerable parties will be breathing a sigh of relief (as will Communicourt, the chief provider of intermediary support!). Her Majesty’s Courts and Tribunals Service and the Legal Aid Agency on the other hand… less so.
A transparency post-script from the TP Team
The Family Law Bar Association, who intervened in the appeal along with the Association of Lawyers for children, sought and secured permission to publish their skeleton argument which can be found here. It wasn’t available to us at the time of the hearing, so we couldn’t factor that into our live posting.
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