In March, we wrote about a case, West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 (Fam) in which Mrs Justice Lieven had included some general guidance on when an intermediary should be appointed to assist an adult party communicate with the Family Court. In that case, Lieven J concluded that it was necessary to appoint an intermediary to allow the mother to fully participate in those proceedings. In a nutshell, her wider guidance was:
- An intermediary should be appointed only if there are ‘compelling reasons’ to do so
- The intermediary should not be there on a ‘just in case’ basis
- The court should first look for other adaptations to enable the party or witness to participate fully
- It should be exceptionally rare to order an intermediary to be present for an entire hearing.
We are aware that there has been some consternation amongst lawyers that the guidance was a move to cut out intermediaries in future cases in a way that might be unfair to some vulnerable parties. In June, a panel discussion on the topic was organised by Communicourt , which considered the issues raised by the West Northants judgment and a subsequent judgment by Mr Justice Williams, Re X & Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam).
What does an intermediary do?
In this context, an intermediary is a special category in the court rules, publicly funded, not an advocate or informal supporter.
In X & Y, Williams J cited the rules as being rather narrow in defining an intermediary as:
… a person whose function is to –
(a) communicate questions put to a witness or party;
(b) communicate to any person asking such questions the answers given by the witness or party in reply to them; and
(c) explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions…(FPR r3A.1)
Williams J said that this rule describes only the intermediaries’ primary function. In practice, they may also assist a party during a hearing to understand the evidence given by others, or assist a party to read papers and to give instructions.
A case study on the impact of the High Court ‘guidance’
There’s been speculation about how the Lieven and Williams judgments are being applied in the lower courts, so we were interested to come across exactly this situation when recently legal blogging in care proceedings in Cardiff.
I attended an interim hearing earlier this summer in which the Cardiff Designated Family Judge, HHJ Paul Hopkins KC, was asked to consider the appointment of an intermediary as necessary to enable one of the parents to fully participate, for the entirety of a two-week trial. The rules and the High Court judgments were scrutinised in that interim hearing.
This care case is subject to ongoing reporting restrictions but I asked the judge if I might be allowed to report on the single issue of the intermediary – he checked whether any of the parties objected, which they didn’t. This is therefore a report just on that interim hearing, the arguments put forward by the lawyers, and HHJ Hopkins’ judgment. This is not a precedent-setting judgment, nor is it likely to be published. However the case is quite complex, with almost all the parties being represented in court by a KC as well as an experienced junior barrister. A good deal of work by the lawyers and the judge went into the intermediary issue.
We hope this summary is a helpful contribution toward the current debate on when an intermediary is necessary.
Background to this case
Care proceedings had been initiated by a local authority in Wales following serious injuries to a child; these appeared to be non-accidental and the parents could not explain them. Issues about what had caused the injuries had been resolved, leaving the court, as the final hearing approached, with the task of deciding who had caused them. The judge first has to make a decision on that point (fact finding) and on that basis, who the child should live with (welfare decision). The judge needs to be confident that the parents fully understand the proceedings and are giving their best evidence, in order for him to reach these vital conclusions. As the Cafcass guardian emphasised, it would not be in the child’s welfare if one of the parents could not fully participate in the proceedings.
Special measures for a vulnerable party
Shortly after issuing its application for a care order, it came to the local authority’s attention that the father had some communication difficulties and the court ordered a cognitive assessment of his capacity to participate in the proceedings. The father is someone who is in full time work for long days in which he interacts with members of the public, so these difficulties had not been identified until the local authority was carrying out an in-depth parenting assessment. The cognitive assessment for the court was undertaken by an experienced, well-known psychologist. However, two of the lawyers in the case commented to me that they had never read anything like this particular report. The assessment concluded that the level of the father’s difficulties was such that, alongside relatively common special measures such as regular breaks during the day and the father joining the hearing from a separate room in the court building, the hearing should take place over half-days, which would effectively double its duration.
The psychologist had diagnosed a number of neurodiverse conditions and found that the father could only concentrate for up to an hour at a time. He struggles to focus, articulate clearly, and with his memory. His barrister explained that the father can’t sustain focus and regulate his behaviour. All the parties’ lawyers had accepted that the father is a vulnerable witness which means he should be given special measures in court to ensure he can give evidence. It was agreed that court days would be shorter than usual, with regular breaks so the father’s lawyers can speak with him, and with him attending online from a separate room. There will be a ground rules hearing before the father gives his evidence. Two months before the final hearing, the court directed an assessment by Communicourt as to whether they would recommend an intermediary and listed a one-hour hearing (which in fact took two hours) to consider their report, a couple of weeks before the trial was due to begin.
The application for a ‘whole trial’ intermediary
At the hearing about the intermediary, the father’s KC explained that she was not seeking the assistance of an intermediary during the periods she was in conference with the father during the day. When she and junior counsel were in direct discussion with the father, they could all understand each other. However, during the periods she was in court and junior counsel was there making notes for her, she could not check on their client’s understanding, so that was when it was necessary for an intermediary to keep the father’s attention on the evidence. The court is obliged to guarantee the father’s Article 6 rights to a fair trial – this is not a luxury and the test is not about cost but about necessity. She described Lieven J’s guidance as ‘recommendations’ that were fact-specific and had not come from the President or the Court of Appeal. She said that Lieven J had attempted to ‘put a gloss’ on necessity. There is a mandatory checklist on the factors the court must have regard to when making participation directions in rule 3A.7; particularly relevant here were para b(i) where a witness ‘has a significant impairment of intelligence or social functioning’ and para c, ‘the nature and extent of the information before the court’. The father would need an intermediary at all stages of evidence and argument in the trial, she strongly argued.
The judge enquired about medication the father was taking for his conditions and at what times in the day this took effect. He pointed out that the scope of the evidence would be relatively narrow – there were no complexities of medical evidence now that the court had to make findings only on who had caused the injuries, rather than what actions had caused them. The father’s KC said that it was not only complex constructs that her client would struggle with, but his conditions and the highly emotive nature of some of the evidence would continually interfere with his understanding. The judge thought that as he would be able to view the father on-screen, he would be able to see if he needed some time out at any point, but the KC explained that the father won’t know when he should indicate he needs a break or other assistance.
The local authority and the mother did not see the necessity for an intermediary; the Cafcass guardian considered the reports and the father’s lawyers’ arguments, concluding that she took a neutral position.
Summary of the judgment
This is my note of what the judge said.
The father in these care proceedings is applying for an intermediary for the whole final hearing, apart from periods of consultation with his lawyers. This is a matter for the court (i.e. the judge) to decide. The local authority and the mother say there are already special measures in place. The Cafcass guardian is neutral. It has been accepted by all the parties that the child’s injuries were non-accidental and the issues are ‘who is the perpetrator?’ and possibly a failure to protect the child. The matter is listed for a composite final hearing (fact finding and welfare). There are two bodies of evidence on the intermediary point – the psychologist’s report and a Communicourt report. The former says that the father’s perceptual reasoning index is very low and his working memory index and IQ are borderline. His conditions create barriers to engagement with the court process. No one takes issue that he is a vulnerable witness. Communicourt’s view was consistent with that of the psychologist. They found that the father struggled to retain concentration after 30 minutes.
The judge went on to consider the following evidence. The father has litigation capacity and can give evidence but this is not determinative (i.e. does not in itself lead directly to a decision). Neither are his education record nor his employment record determinative. He is prescribed medication to help alleviate his conditions. He has the benefit of a very experienced legal team and all the advocates in the case are very experienced and able to address individual needs. The statements of his evidence being submitted by his team are comprehensive. It has been agreed that he will have the benefit of a separate waiting room, joining the proceedings from another room with his solicitor, with short days (between 11 a.m – 4 p.m) and a later start to the day he gives his evidence. There will be breaks (5 minutes every 35 minutes), and he can have more protective measure in place when he gives his evidence.
The judge looked at the authorities (the rules and the case law). He noted that the Lieven and Williams judgments were at first instance (i.e. not binding on him). They do not amount to guidance but they are significant. In KA, Lieven J had referred to a paucity of guidance for family courts but said that there was detailed guidance for criminal courts which she believed was directly relevant to family courts. Williams J had applied a test of a ‘spectrum of vulnerability’ in which only individuals at the far end of that spectrum would need an intermediary. The issues in the current case before this judge were not now especially complex and the father’s statements showed he understood them. Although there might be some hostility in some of the oral evidence, the father was not ‘intimidated’ by other parties (within the meaning of the rules). Williams J had referred to cost but that was only one consideration.
The judge said that he had considered all the factors and the High Court judgments very anxiously; although the judgments were not guidance, they were significant. He was ultimately persuaded that the father did need an intermediary and that they can attend a ground rules hearing, but that otherwise they will only be present for the father’s evidence. It will not be necessary for him to have an intermediary for the whole hearing. The judge detailed the measures that will be in place (as set out above) and said that the father’s highly experienced legal team could ensure that a suitably responsible person sits with him all the time. The judge will be able to see the father throughout. He was not satisfied that it was necessary for the person who will be sitting with the father when he wasn’t giving his evidence to be an intermediary.
I understand that the father’s team applied for permission to appeal HHJ Hopkins’ decision but this was refused by a judge in the Court of Appeal.
Comment
I felt that the father’s legal team were putting forward a very persuasive case, based on their experience of working with him and the contents of the psychologist’s and Communicourt reports (neither of which I’ve seen directly, but I’ve heard several excerpts). I did however wonder about the assumptions that his solicitor being in the room with him would be inadequate to respond to his requirements. Everyone throughout the hearings I attended was paying assiduous attention to respecting the participation of both the parents and all witnesses, so I didn’t envisage the father’s solicitor being lax in ensuring he was keeping up . The KC for the local authority pointed out that all the lawyers involved were very experienced in helping the court with vulnerable witnesses.
However, the judge went into a great deal of detail in his reasoning for refusing the ‘whole trial’ application, so he clearly took the father’s application very seriously. He was perhaps mindful of Lieven J’s guidance in KA that ‘a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.’ [para 45] The father’s KC and the judge both briefly referred to cost (as not being the test), which I assume related to a comment in the Williams judgment:
Like other court funded resources (whether judicial or otherwise) they are a limited resource and a resource which comes with significant costs. [para 5]
Williams J had elaborated on the cost point:
In the South Eastern Circuit (excluding London) the available figures show that HMCTS expenditure on intermediaries has increased from £1.065m in 2019/20 to £3.6m in the first 9 months of 2023/24. That is a considerable sum and the instruction of an intermediary and their deployment inevitably also adds to the timeframe for the determination of a case. I emphasise where necessary they are invaluable to the party or witness and their legal team and to the court process but the parties and the court should consider carefully in each case whether the requirements set out in the FPR are met. [para 10]
Lieven J had focused more on avoiding delay than avoiding expenditure.
As I’ve said, these observations on cost and delay were only obliquely referred to by the father’s barrister and the judge in the hearing but they made several references to other parts of the Lieven and Williams judgments, which do seem to be having an impact. I wasn’t given copies of the position statements of the parents but the solicitors for the local authority and the guardian sent me their position statements, both of which carefully considered the law on necessity. As noted above, the local authority submitted that an intermediary was not necessary and the guardian concluded she was neutral.
There are some significant differences in the facts in the two High Court cases and the Cardiff case, although all concerned an application for a ‘whole trial intermediary’. In KA, the mother was profoundly deaf and successfully argued that a specialist deaf intermediary was necessary to assist her with communication difficulties so she could participate in a five-day hearing. In X&Y, there had been some procedural errors and rather vague and insufficient evidence on the necessity for an intermediary for a mother who had been diagnosed with PTSD and ADHD, but Williams J said the position would be kept under review. The court in Cardiff had the benefit of two comprehensive reports recommending an intermediary, but it was clear that the decision on necessity is one for the judge alone, and not determined by expert recommendations.
At an earlier hearing in the Cardiff case, a different judge had mentioned that guidance from the President on intermediaries was expected, but I’ve not come across any other reference to this. Authoritative guidance would surely be helpful.
What would also be helpful would be if enough judgments were published to provide an evidence base for an informed debate on the contribution of intermediaries but, given the level of the Court workload I’ve glimpsed in this case, I can’t see any scope for that in the near future.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
Our legal bloggers take time out at their own expense to attend courts and to write up hearings.
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.
Thanks for reading!