We are delighted to be sponsoring the Legal Aid Lawyer of the Year Awards #LALY25 for the second year running. This year, we’re sponsoring the Criminal Defence category. The nominees in this category are Manisha Knights (MK Law), Emma McClure (SL5 Legal) and Georgia Patterson (TV Edwards Solicitors). Wishing all of the finalists in our category the very best of luck!
Our team of intermediaries work with Legal Aid practitioners in Criminal matters (and beyond). This means we have a front row seat to the extraordinary work undertaken by many in the sector. Very often, we witness the graft and empathy of Legal Aid lawyers who go the extra mile for their clients, and collaborate thoughtfully with intermediaries to ensure their client’s effective participation.
We always enjoy the Legal Aid ceremony, which is both inspiring and manifestly un-fusty! The Communicourt team will be in attendance, in their glad rags, at the awards ceremony on 4th July 205. Please do stop by for a chat about all things effective participation!
To mark the event and to do a little something to celebrate Legal Aid practitioners, we asked our intermediaries to share their thoughts on some of the lawyers they’ve worked alongside. Here’s what they had to say…
A new Court of Appeal judgment (Re M (A Child: Intermediaries) [2025] EWCA Civ 440) restores the “test of necessity” as the only test which should be applied when considering intermediary applications in Family proceedings.
The new judgment removes additional tests, for example of “exceptionality”, which came into use over the past year following judgments provided by Mrs Justice Lieven and Mr Justice Williams, and practice guidance from the President of the Family Division.
We are very pleased that the mother in this case will now receive the intermediary assistance recommended as necessary by a psychologist and our assessor.
Over the past year, many solicitors and advocates have reported to us that it has been more challenging to gain approval for intermediary assistance in cases similar to RE: M, where communication needs are very likely to adversely impact participation and communication demands are high. This has been a source of considerable concern. We are extremely grateful to all who assisted in bringing this matter before the Court of Appeal, clarifying a number of important issues affecting vulnerable people’s access to the careful consideration and adjustments needed to ensure their effective participation.
The judgment: digested
Below you will find Communicourt’s digest of the Court of Appeal judgment, including some action points for both intermediaries and legal practitioners, and some areas for further reflection and discussion.
Please note: This post is intended to provide informal guidance and the views of Communicourt at the time of publication. If you have questions regarding the instruction of an intermediary in a specific case, the matter should always be discussed directly with the presiding judge. If you require further information regarding our intermediary service, please contact admin@communicourt.co.uk or telephone: 0121 663 0931.
Key points from the judgment
Discussion and action points
The test of necessity is the only test which should be applied when considering intermediary applications.
Paragraph 7(2). “The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing.”
Paragraph 51. “…as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.”
This test is set out in Part 3A and Practice Direction 3AA of the Family Procedure Rules 2010 (FPRs), which are appended to the Court of Appeal judgment in full.
Paragraph 7(2) continued: “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.”
We are grateful for clarity around the tests that should be applied when considering intermediary applications.
The Court of Appeal judgment removes recent tests based on concepts such as rarity, exceptionality and a ‘spectrum of vulnerability’, noting:
Paragraph 41. “There is […] no warrant for overlaying the test of necessity with concepts of rarity or exceptionality. Frequency is not a test, and nor is exceptionality. Similarly, the introduction of tests of “compelling reasons” […] beckon the court to short-circuit its consideration of the evidence in the individual case.”
To support the Court to consider this crucial test of necessity, we have been piloting a new approach to intermediary reporting which provides more granular detail regarding:
– communication needs, – whether any needs will mean the individual faces barriers to effective participation (and if so, at what specific stage). – the measures necessary to overcome any barriers. – additional measures the court can implement without intermediary assistance (where relevant).
We anticipate rolling out this new approach organisation-wide over the coming months and seeking feedback from legal professionals to continually improve our reports.
A note on when we recommend:
Communicourt intermediaries do not recommend intermediary assistance in 28% of cases (2024-25 data), for example where an individual’s effective participation can be accommodated by the Court, or where a person’s needs are so significant that intermediary assistance will not ensure effective participation.
We assess each individual’s communication profile in detail, alongside their response to possible communication strategies. We only recommend intermediary use in cases where:
– We identify that a communication need will prevent an individual’s effective participation at one or more stages of proceedings. – We identify intermediary strategies which will successfully support the individual’s participation. – Intermediary assistance is necessary (e.g. other adaptations and measures will not be sufficient to support participation).
The necessity of intermediary assistance should be considered holistically, at all stages of proceedings.
Paragraph 25.“…the primary focus of an intermediary appointment is to assist with communication within the courtroom, and in particular to enable the vulnerable person to give their best evidence. However, […] participation directions are not limited to these functions. The last of these provisions requires that, when considering whether the participation of any party or witness in the case is likely to be diminished by reason of vulnerability, the court should consider the ability of the party or witness to
“a) understand the proceedings, and their role in them, when in court; b) put their views to the court;
c) instruct their representative/s before, during and after the hearing;
d) attend the hearing without significant distress.”
Moreover, a party’s ‘participation in proceedings’ includes giving instructions and making written statements, a process that requires questions and answers. The witness statement of a witness called to give oral evidence will stand as their evidence in chief unless the court directs otherwise – FPR rule 22.6(2).”
Regarding the extent of the intermediary role, at paragraphs 39 and 43, the Court of Appeal judgment states that Part 3A and PD3AA should be considered in full, highlighting that other recent judgments had erroneously focused on 3A.1 in isolation, resulting in the role of an intermediary being inaccurately reduced to largely assisting with evidence only (paragraphs 39 and 43).
The judgment contains a helpful reminder of the ‘building blocks’ of effective participation in Family proceedings.
The Court of Appeal judgment makes clear that effective participation in Family proceedings extends beyond the giving of evidence, and includes a person’s ability to instruct their legal team, and understand proceedings.
The potential role of an intermediary is also clarified in this judgment, which notes that this extends beyond facilitating an individual’s evidence (which is set out in the FPRs in their entirety).
We read the Court of Appeal’s points regarding conferences outside of Court with interest. It is positive to see recognition that an individual’s statement is their ‘primary evidence’, the preparation of which requires them to understand and respond clearly to questions.
We often recommend intermediary involvement in preliminary conferences due to the considerable communication demands placed upon Court users and the importance of effective participation at this stage (which can have a significant impact at later stages of proceedings). We agree that this measure will not be required in every case, and should involve careful consideration of information from solicitors, intermediaries and other sources. Decisions regarding adjustments at this stage (as at any stage), must be, as the Court of Appeal notes, “person-specific and task-specific”.
For example, some Court users with communication needs may find communication somewhat easier in a private conference with a solicitor they have an established rapport with. However, familiarity and a more informal setting will not always be sufficient to address all barriers to participation: cases may hinge on complex timelines, consequential thinking, abstract legal concepts, lengthy and detailed written documents, all of which can pose significant challenges depending on the individual’s needs and difficulties. Discussing emotive matters in depth may be dysregulating (with additional impacts upon communication) and the individual’s presentation may fluctuate depending on a wide range of factors (sleep, medication, mental health etc).
Cognitive reports should be provided to the assessing intermediary.
Paragraph 26. “If the court then approves an intermediary assessment, the cognitive report should be supplied to the assessor.”
Where cognitive (and other) reports are provided at, or ahead of, an intermediary assessment, we review this information and refer to it as part of our assessment and reporting practice.
However, in the majority of cases, we do not currently receive reports at this stage. Our data shows that, to date in 2025, we received other professional reports as part of a referral in 21% of cases.
Action point for Communicourt: We will explore how we can more proactively seek additional professional reports from solicitors as part of our referrals process, to ensure any available reports are reviewed by assessors at this stage.
Action point for solicitors: Please share any relevant professional reports via our referral portal as soon as possible. This can be done when you make the initial referral (here’s a quick how to guide).
If reports become available after the initial referral has been made, please email them to: admin@communicourt.co.uk, citing the case number and your client’s name.
Advocates simply cannot “do it all”.
Paragraph 7. “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.”
When dealing with the proceedings at the centre of this appeal, the Court of Appeal judgment sets out that consideration should be given to counsel’s capacity to support the participation of their client whilst performing their other duties:
Paragraph 73 (2) “As is often the case in care proceedings, counsel would be conducting the fact-finding hearing without the benefit of a representative from her instructing solicitors, meaning that she would have to assist the mother whilst calling and cross-examining witnesses. That was something to which the judge should have had regard.”
The Court of Appeal judgment indicates that an advocate skilled in working with clients who have communication differences or difficulties is not a silver bullet in terms of effective participation.
From our intermediaries’ experience, it is incredibly challenging, even for exceptional advocates, to facilitate a client’s effective participation while running their case.
For example, it is often not possible for an advocate to be on their feet, while also monitoring the attention, emotional regulation and understanding of their client, while additionally delivering tailored communication strategies (e.g., simplified verbal summaries, visual aids, annotations, checklists etc).
Similarly, in conference, there may be a great deal of additional demands an advocate must juggle. They may need to move between attending advocates’ meetings, drafting submissions and other competing tasks, while their client requires considerable extra time and support to understand a key document in a case, the conflicting positions of multiple parties, complex medical evidence or simply how the hearing will progress. An intermediary can provide dedicated, person-centred assistance with such matters.
The extent to which an advocate can accommodate the effective participation of their client will, of course, vary according to the needs of the client in question.
Other factors, for example the fact that “continuity [of advocate] may not be guaranteed” may also affect the extent to which an individual’s effective participation can be accommodated by their representative ‘on the day’. Rapport and attunement are often crucial ingredients in successful support of an individual’s effective participation – which leads us on to consider what constitutes intermediary appointment on a “just in case basis”…
Intermediaries should not be used on a ‘just in case’ basis and participation directions should remain a live issue throughout proceedings.
Paragraph 24. “The court will no doubt seek to avoid making repetitive orders, but may give directions that last for certain hearings only, and revisit and revise directions in the light of experience.”
While an intermediary certainly should not be allocated on a “just in case basis”, the question of what is a “just in case basis” vs. a ‘reasonable possibility that an intermediary will be necessary’? is one which we are keen to discuss more deeply with judges and legal practitioners.
This question does not only apply to possible changes in advocate. It is also applicable when considering the many unexpected changes which can arise over the course of Family Proceedings. A case which, at the outset, may be relatively straightforward with few parties and widespread agreement on most issues, may later involve complex evidence and competing positions which become more challenging for an individual to understand. This can happen at short notice.
We are grateful for the indication that participation directions should remain a live issue which is reviewed throughout proceedings (including in instances where support can be stepped down). This is surely the only practical way in which to ensure intermediaries are not allocated on a “just in case basis” but are equally provided where necessary when communication demands increase.
However, the question of how this can be practically achieved without undue burden upon Court time is another topic which we believe requires further interdisciplinary consideration and discussion.
Applications for intermediaries should make clear what measures are sought, at what stage of proceedings and why.
Paragraph 23. “FPR rule 3A.10 supposes that an application will be made in the document that originates the proceedings or by a later Part 18 application. The application must explain what measures are sought and why each of them would be likely to improve participation or the quality of evidence – FPR rule 3A.10 and PD3AA paragraph 6.”
Paragraph 24. “If an intermediary assessment is granted, and the recommendation is for intermediary assistance, it should again be made clear what actual order is being sought. In particular, there should be clarity about what hearings or parts of hearings an intermediary would attend, and whether it is suggested that an intermediary is required for other legal meetings inside or outside the court building. The provision of a draft order will assist.”
Paragraph 6. “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…”
Paragraph 27. “The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate. Advocates are expected to have the skill 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. The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement.”
Considering the specific needs of an individual and the specific demands of each stage of proceedings is an essential exercise to undertake in order to implement the right adjustments at the right time, and to allocate resources appropriately.
However, there is currently a lack of clarity around the “two step” process relating to intermediaries. For example, at ‘step one’, an advocate will apply for an intermediary assessment. At this stage, they will likely not know exactly what measures they are applying for nor the full rationale behind any measures they will seek.
The ensuing intermediary report will then clarify the stages at which intermediary assistance is found to be necessary, and the reasons why this conclusion has been reached. A more detailed and specific application can then be made by advocates at ‘step two’.
Communicourt has been working internally to develop a fresh approach to report writing which presents the above information in a manner which will be of most assistance to the Court. We are currently piloting this new approach and hope to roll it out organisation-wide over the coming months.
However, exactly how these “two step” applications should be made (and what evidential basis is required at what stage), is an outstanding area in which further clarification would be very much welcomed, to ensure the judiciary and advocates have a clear procedure to follow.
Reflection: Moving towards improved information-sharing and active collaboration
This Court of Appeal judgment provides an opportunity for all professionals working with Court users with communication needs to reflect upon and improve their practice, from intermediaries to the judiciary.
Ensuring decisions regarding participation are holistic, responsive and supported by all of the available information is crucial to ensuring the right Court users receive the right level of support at the right stages to ensure effective participation. In our view, this calls for stronger working relationships, more communication and better information-sharing between all relevant professionals and lay people.
Every case is different. This means that interdisciplinary collaboration is key. So, too, is careful consideration of the individual’s needs at each stage – from preparatory conferences to judgment.
There are many strands of information to consider – and these strands may be ‘owned’ by different professionals and lay people. For example,
A judge will have oversight of the case, its likely structure and relative complexity, as well as its competing demands.
An intermediary will have focussed information about the individual’s communication needs and the strategies necessary to ensure their effective participation.
A solicitor will have insight into the individual’s participation in legal conferences and may be the first professional to identify a communication barrier impacting their client’s participation in proceedings.
A barrister will know what level of assistance they can practically provide to support their client’s participation.
A clinical psychologist can offer their expert opinion, more detailed medical information and standardised scoring from cognitive assessment.
A social worker may be aware of personal circumstances which will mean the individual faces increased barriers to participation at a particular stage (for example if they have mental health difficulties which are fluctuant and are likely to be exacerbated in response to a particular life event).
The Court of Appeal judgment notes at Paragraph 6, “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”.
As recommended in the judgment, ensuring intermediaries have access to resources like cognitive assessments is certainly a helpful step towards better sharing of these ‘strands’ of information. In order to work towards more effective consideration and accommodation of communication needs, we also believe that further discussion is required around topics including:
When and how Ground Rules Hearings are held
Mechanisms to support ongoing review of participation directions throughout a case
How relevant professionals can better collaborate to continually improve practice within the Family Justice System.
With closer interdisciplinary collaboration, we hope that we can collectively strive to reduce the “risk that pressure in any system is disproportionately felt by those least able to bear it” and to ensure the Court can “adapt its procedures to achieve fairness for vulnerable individuals, in particular by ensuring that all participants are on an equal footing in the light of the importance and complexity of the issues.” (paragraph 12).
Further reading:
We’re also grateful for involvement in and coverage of this judgment by a number of contributors. Here are some additional sources we have found helpful when reflecting on this development:
If you have any questions regarding intermediary assistance for your client in light of this judgment, please contact admin@communicourt.co.uk or telephone us on 0121 663 0931 (Mon-Fri, 9am-4.45pm).
Following the successful appeal of a decision to deny intermediary assistance to a mother in care proceedings, the full Court of Appeal judgment in Re M (A Child: Intermediaries) [2025] EWCA Civ 440 has been published.
We are very, very pleased that the mother in this case will now receive the intermediary assistance our assessor and a psychologist found to be necessary to ensure her effective participation in complex proceedings.
The Court of Appeal decision removes the additional tests advised in recent Family Court judgments and guidance. This includes tests of “rarity” or “exceptionality”, and tests relating to “compelling reasons” or a “spectrum of vulnerability”.
Instead, only the pre-existing “test of necessity” set out in the Family Procedure Rules (Part 3A) should continue to be applied when considering intermediary applications.
We are reviewing this important judgment carefully, as there are many points of learning and reflection for us to consider.
Our mission, as always, is to ensure that Court users with communication needs receive the assistance necessary to ensure they can meaningfully participate in cases which could shape the course of their lives. In light of this change in practice, we will be exploring how we can best assist the Courts “to achieve fairness for vulnerable individuals, in particular by ensuring that all participants are on an equal footing in the light of the importance and complexity of the issues” (paragraph 12, RE: M).
We will provide a more detailed response to the judgment in this case over the coming weeks.
Each quarter, at our tri-monthly Saturday Team Day, we host the LOVE Awards – an opportunity to acknowledge and celebrate the ways our team “Live Our Values” of Respect, Innovation, Collaboration, Diversity and Courage.
This quarter, intermediaries Tess, Penny, Fiona and Charlee, alongside Client Relationship Manager, Sue, all earned their place on the coveted Communicourt trophy.
Fiona received the Respect Award for her attuned work with a service user with selective mutism. This individual was unable to verbally communicate their instructions to their legal team at an important stage in proceedings. Fiona built rapport slowly, first by making everyday conversation they could respond to non-verbally, then introducing light-hearted topics and questions they could provide one-word responses to. Fiona took care to ensure this person felt comfortable and ‘in charge’ of their interaction. Over time, the service user was able to communicate verbally with Fiona, who could then relay their instructions to their legal team.
Tess received the Innovation Award for her thoughtfulness, care and person-centered practice when supporting a young child to give evidence. From the initial intermediary assessment, through to the conclusion of the witness’ evidence, Tess adapted her practice to ensure this young person felt comfortable, and that the court made the right adaptations to ensure their voice was heard, while minimising the impact of this difficult process upon them.
Charlee received the Collaboration Award for the quality of her work on a demanding case, alongside another intermediary. Working together, these team members supported each other, learned from each other, and collaborated seamlessly to ensure the right adaptations were made to ensure the effective participation of the individuals they were assisting. Charlee’s collaboration with her colleague ensured that the service users they were assisting received an outstanding service throughout proceedings.
Penny received the Courage Award for raising a professionally challenging matter through a very detailed and sensitive written Judge update. This matter was having a considerable negative impact upon the service user’s ability to participate effectively in proceedings. Penny’s intervention ensured that the matter was resolved appropriately by the Court and the service user was able to participate.
Sue received the Diversity Award this quarter. Sue received this award for always going above and beyond to celebrate colleagues and making everyone feel like an important part of the Communicourt community. Sue also recently volunteered a blog, sharing her thoughtful personal reflections on Guru Nanak Gurpurab, and the significance of this event in Sikhism – a great way to encourage the sharing of different viewpoints and cultures within our organisation.
You can learn more about the work of our team, and intermediaries in general, through our blogs and The Access Brief. Here is some suggested further reading (and listening):
Rapport building is a huge part of any person-facing role, but in few contexts is it more essential than when working with a court user who has a communication difference or difficulty. This will come as no surprise to legal professionals who represent individuals with a communication need. In such cases, your relationship with a client can be the difference between supporting their effective participation in proceedings, and total communication breakdown (which may create more barriers to their fair involvement in a case).
For intermediaries, too, building an effective rapport is often critical, both when conducting an assessment of a person’s communication profile and needs, and when providing the required level of communication support within proceedings.
Lack of rapport can mean that an individual does not engage with (or even responds negatively to) crucial communication strategies, from comprehension checking (asking the individual to put key information into their own words to check their understanding), to the use of visual aids (implementing visual resources such as diagrams, mind maps and visual timelines to support understanding).
Poor rapport may also mean that the court user does not feel able to indicate when they have not understood, when they require further explanation or when they are experiencing difficulties (e.g., with attention or emotional regulation) which are preventing them from participating effectively.
An effective rapport can aid clearer two-way communication (for a host of reasons, including improved emotional regulation), as demonstrated in this example from one of our practitioners:
Barriers to rapport building
There are often considerable barriers to effective rapport building between professionals and court users with communication needs. Many court users, for example, have a long history of professional involvement in their lives, and may struggle to trust or engage with ‘people with lanyards’, due to previous negative experiences.
When an intermediary assesses or assists a respondent in care proceedings, for instance, the individual may have had support workers who then provided negative information about their parenting abilities, or may have recently been assessed by a psychologist whose report later concluded there were significant issues which could prevent them from parenting safely for the foreseeable future. Many respondents in these cases are care experienced themselves and, as such, will have experienced intervention and intrusion from professionals across their lifespan.
How intermediaries build rapport
So, how does an intermediary go about building rapport? The answer, as you might expect, is that there is no one size fits all approach or silver bullet. There are some good practice steps which can be explored (which we’ll dip into a little later), but just like every court user – rapport building is completely individual.
Here are some experiences of successful rapport building, shared by our intermediaries, to offer a little insight into how varied building a successful working connection can look:
Getting off on the right foot
One important aspect of building effective rapport as an intermediary is introducing ourselves, our role and its scope clearly. As explored above, a court user may well have experienced considerable professional involvement in their life – and will most certainly have encountered a number of different legal professionals as part of their court proceedings. Clarity around who you are, what you will do, who you work for and your professional responsibilities can help foster trust, and ensure the person does not feel let down when you are unable to fulfil a particular ‘ask’.
Alongside ensuring informed consent, this is one reason we take plenty of time to explain the intermediary role at the outset of assessments (and recap this information when we work with someone in a conference or hearing). As part of this process, we clearly set out our role, the things we can do, and what we can’t do. We also make our position clear. We explain we are ‘impartial’, breaking this concept down (as needed) to explain we do not work for the person’s solicitor, for the local authority, for the police etc. Instead, we work for the court, to make sure the person can understand and take part. We take time to directly check the individual’s understanding of this important information, putting additional strategies in place to support understanding where needed.
If there are other professionals assisting the individual at court (for example an advocate or an interpreter), we’ll work to ensure that these roles are clear, using resources such as visual aids where appropriate.
Transparent, careful introductions like this can help foster trust between an intermediary and court user, and contribute to effective rapport over the long term, by ensuring expectations are clear.
Finding points of connection
In many of the examples above, our intermediaries found points of connection to help them build rapport with the court user they were assessing or assisting. In some cases, that was a shared interest (such as British Sign Language), in others, it was an activity of interest to the court user, which they could do together (playing catch, or looking at a doll).
There are lots of different ways to find points of connection, and how this works will vary considerably depending on the personality and interests of both the court user and the intermediary. Approaches like asking open questions and sharing appropriate information about your personal interests can be really helpful.
For example, it is common for defendants in custody to watch quite a lot of television. Identifying a programme both intermediary and court user have been watching can provide a small point of connection upon which to start building rapport. Many of our staff have found that a working knowledge of Love Island, particularly, can be an especially helpful tool for rapport building with people in custody! As a side note, asking the individual to give a rundown of the latest episode (“I missed it! What happened?”) can be a great way to subtly assess expressive and narrative abilities, while also building rapport.
Identifying and building upon a point of connection can be very effective at breaking down barriers (for example, humanising a professional and establishing a genuine interpersonal connection beyond the professional interaction), which can build trust and openness within the working relationship. This may mean that a court user feels safe disclosing when they have not understood, or feels more comfortable accepting support (which may make them feel self-conscious or exposed, particularly in Family proceedings, where their capacity to parent may be in question).
Acknowledging differences
One theme which came through very strongly when discussing rapport building with our practitioners was positive acknowledgement of differences (alongside seeking points of connection). Barriers such as professional-service user power dynamics, and court users’ (conscious or unconscious) masking strategies can make it really uncomfortable for people to accept or seek support.
Noting the differences between yourself and the court user can make accepting support or expressing a lack of understanding a less daunting prospect. For example, acknowledging that you work in court and legal matters every day, but the processes and terminology will often be unfamiliar for anyone who doesn’t work in this setting.
Spending time getting to know about a court user’s background, interests and experiences can also create opportunities to highlight things that they know more about than you (for instance, if they are completing training in a trade whilst in custody, understand another language, or have a topic of special interest). This can create a sense of equality between you, highlighting that you each have areas of expertise and topics you know less about. The example above, in which the service user taught the intermediary how to fingerspell, is a great example of this concept at work.
Rapport building good practice
There are lots of guides online which set out good practice in terms of rapport building. They typically suggest practices like maintaining good eye contact, mirroring body language, using open body language, smiling, using the individual’s name, etc.
While many of these tips will be helpful in building rapport with some people, it’s important to remember that they may not prove helpful in all instances. For example, some autistic people find eye contact uncomfortable or find interpreting body language overwhelming. It’s therefore really important to be attuned to the communication preferences of the person you are seeking to build rapport with, and to enter each interaction with an open mind and sensitivity to a range of different communication styles.
In general, a position of curiosity can be a really helpful place to start from. Ask yourself, what makes this person feel comfortable or uncomfortable? What are they interested in? What are our similarities and differences? What have their experiences with professionals been like? In some cases, these may be questions you can talk about openly with the individual, in others, there may be an aspect of trial and error (trialling a strategy, noting its impact and implementing or adapting it, as needed).
Recording what works
As our intermediaries develop an understanding of a court user, they carefully document effective communication approaches for that individual, as well as helpful rapport building information (for example, that the person prefers limited eye contact, feels more comfortable when they can sit by an exit, or has a strong interest in fishing).
This information will be recorded in the initial intermediary report, and/or shared in an internal assessment note. Each time an intermediary then works with the individual, detailed case notes will be added to our shared system, ensuring that the practitioner reflects on the effectiveness of different strategies, and shares this information with any colleagues who may work with the court user in the future.
While Communicourt endeavours to provide intermediary consistency, the demands of juggling many different (often unpredictable) cases can mean that a different intermediary needs to step in during proceedings. Our internal documentation and close working relationships mean that any new intermediary joining the case has a detailed understanding of what works, what doesn’t and how to quickly build rapport with the individual in question.
If you would like to learn more about the intermediary role, or explore court communication tips for legal professionals working with an individual with a particular diagnosis, check out The Access Brief. This resource is our free library of information and guides, designed with legal practitioners in mind. It includes bite-sized guides on a wealth of topics, from supporting the participation of a client who has difficulties with emotional regulation, to checking understanding effectively.
We’re very grateful to our hosts (3PB), panellists, and guests for joining our discussion exploring the impact of recent family court judgments regarding intermediaries, upon family court users with communication needs.
The panel also considered the judgment of Mr Justice Williams (Re: X&Y (Intermediary: Practice and Procedure) [2024]), published this April, which furthered the guidance in Lieven J.
Below you can read about key topics explored in the session [click to jump]:
The judgments of Lieven and Williams effectively ‘raise the threshold’ for intermediary assistance in family proceedings. Lieven identifies a lack of guidance regarding intermediary appointments in the family court in the Family Procedure Rules or Practice Directions, and imports the tests currently used in Criminal proceedings from R v Thomas (Dean).
Intermediaries should only be appointed if there are “compelling”reasons to do so.
It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial.
Intermediaries are not to be appointed on a “just in case” basis.
Williams’ judgment further considers the points raised by Lieven, setting out that:
The test for intermediary use should be whether this is “necessary” (not simply desirable), to ensure a fair trial.
Other adjustments the court can make should be considered when considering whether an intermediary is a “necessary” measure. Only if these adjustments will not ensure the court user cannot participate fairly, should an intermediary be approved.
“Only towards the far end of the spectrum will be the cases where an intermediary is necessary for the giving of evidence. Only at the very far end will be cases where an intermediary is required for the whole of a hearing and only in the very rarest cases is an intermediary likely to be necessary to enable the party to give instructions in advance of a hearing.”
The case behind the judgment
To open the event, Robert Pettitt, shared the background to West Northamptonshire Council v KA & Ors. In this case, Mr Pettitt represented the mother, who was Deaf and had mental health diagnoses which further impacted her participation in proceedings.
In court, the mother’s legal team were described as working flexibly and innovatively, to ensure she could participate effectively. This meant adapting seating in the courtroom, to ensure the six-person strong team of BSL interpreters, out-of-court interpreters, the Deaf intermediary, Mr Pettitt, and the mother could all communicate with each other.
Mr Pettitt noted that, without the assistance of the Deaf intermediary, “it would have been impossible for the mother to participate as fully as she did”. He also highlighted the very positive comments of the judge presiding over the case, regarding the manner in which the mother’s participation was supported by all of the professionals involved.
However, at the outset of the Final Hearing, the Deaf intermediary did not attend. The mother’s solicitor was unable to contact them for three days. The case was adjourned, as no replacement Deaf intermediary (a specialist role and a scarce resource in England and Wales) could be found.
The case then came to the attention of Mrs Justice Lieven, who sought to bring a wasted costs order against the Deaf intermediary. This was abandoned, as it became clear that the Deaf intermediary had not attended and had been impossible to contact due to wholly understandable reasons.
Mrs Justice Lieven then heard arguments regarding ‘whole trial direction’ for an intermediary during the hearing. This was an argument which counsel were not expecting to deal with, as the case had been listed in relation to the wasted costs order. No party submitted that the order for a Deaf intermediary to be appointed for the entirety of the hearing should be varied.
Lieven ultimately found “the appointment of a Deaf intermediary for M in this case is necessary for the entirety of the hearing”, due to the extent and complexity of the mother’s communication needs. As Mr Pettitt noted during his presentation, this case fell “fairly and squarely at the exceptionally rare end of the spectrum”.
Mr Pettitt commented that there is a fundamental practical problem if relying on the case outlined above as support for a “whole trial” intermediary. As this was an exceptional case, where the need for assistance was very, very high.
The intermediary role
Communicourt MD, William Scrimshire, provided some information about the intermediary role ‘in practice’ in family proceedings.
He noted the Williams judgment highlighted that the role of the intermediary, as defined in the Family Procedure Rules, is very narrow (limited to facilitating the communication of questions and answers between the witness and the court during their evidence). The Williams judgment states “…the definition should necessarily be interpreted as meaning an intermediary can only perform those functions, it does give an indication of what their primary function is. Thus, assisting a party during a hearing to understand the evidence given by others or assisting a party to read papers and to give instructions is a function not identified in the rules and one which requires to be evidenced”.
William noted that the narrowness of this definition might be surprising to advocates who have worked alongside an intermediary in family proceedings to date, where the communication assistance provided to individuals is very much broader, extending to support to understand legal advice and give clear instructions in conferences, support to follow the thrust of proceedings in real time in hearings, the use of simple recaps and easy-read court notes to aid retention of key points outside of the courtroom, the monitoring of (and implementation of strategies to support) both attention and emotional regulation – and much more.
William also raised that many strategies intermediaries implement to support effective participation “behind the scenes” may go unseen by judges and the counsel of other parties. You can read more about this in our recent case study, ‘The Invisible Intermediary’. He explained that it is of concern that judges may not have a clear picture of the extent of the assistance skilled intermediaries provide, when making decisions about intermediary applications.
Panel discussion
Necessary vs. desirable
Matiss Krumins considered the difficulty of identifying when the assistance of an intermediary is ‘necessary’ rather than ‘desirable’, (the test set out in Williams’ judgment), noting that this can be a challenging line to draw.
Citing Munby LJ, Williams states that necessary falls “somewhere between indispensable on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand, having ‘the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.”
William Scrimshire shared that, whether you apply Lieven’s recommendation of a “compelling reason” or Williams’ test of “necessity”, when a Communicourt intermediary recommends “whole trial” intermediary assistance, it is because the assessor feels that an intermediary is necessary to ensure the effective participation of the individual. The “compelling reasons” (particularly the observed communication difficulties, their likely impact in legal proceedings, and the measures required to mitigate those impacts) are then documented in the intermediary report, which can be used by advocates and judges at applications for an intermediary.
Fewer expert reports and intermediary assessments
Rupinder Jagdev noted there is “a lot of reluctance” among judges to grant cognitive assessments, preventing cases reaching the stage where an intermediary assessment is even considered.
This means that judges and advocates may have less information at hand when considering the support an individual requires to participate effectively in legal proceedings. This is particularly troubling in cases where an individual masks their difficulties. This is very common in care proceedings, where parents may (consciously or unconsciously) wish to conceal difficulties (among many other factors).
William Scrimshire raised a key difference between the ways Criminal and Family Courts fund intermediary assessments, pointing out that these are funded by Legal Aid in Criminal proceedings, and HMCTS in Family cases. He stated that this means family courts may effectively make a decision about intermediary necessity before an assessment is undertaken. Instead, taking that decision at the assessment application stage.
False economy
The cost of intermediaries is cited in Williams. During the panel discussion, Rupinder Jagdev raised the possible false economy of reducing intermediary assistance for Family Court users with communication needs. She raised the potential of solicitors being required to attend hearings to provide one-to-one assistance, and the possible delays which may be incurred when clients have not understood or been able to participate effectively.
Ms Jagdev also highlighted that, without an intermediary assisting during hearings (e.g., by providing whispered simplification and explanations), legal teams would likely require far longer breaks in proceedings, in order to properly explain key points to their client (among other tasks), to ensure they are able to follow the thrust and give informed instructions.
Although not raised during this panel, it may be helpful to note that Communicourt, Triangle, The Intermediary Cooperative and Aspire are HMCTS Appointed Intermediary Service (HAIS) providers, managed by the Ministry of Justice. HAIS fees are set by HMCTS and were not competed on as part of tender submissions.
Evidence only and rapport building
Ms Jagdev additionally raised that, from her perspective, booking ‘evidence-only’ intermediaries may mean that the court user and intermediary have insufficient time to build rapport, attune to each other’s communication style, and therefore ensure that the best possible assistance is available during evidence.
Adjustments in lieu of an intermediary
Much of the discussion centred around whether or not the court can make sufficient adaptations to facilitate effective participation without the assistance of an intermediary, for example, through the implementation of regular breaks and through careful application of The Advocate’s Gateway (TAG) toolkits by counsel.
William Scrimshire acknowledged that there are many excellent barristers, well versed in TAG, who are skilled in tasks like simplifying legal concepts. He also noted that TAG (although most strongly focussed on the participation of witnesses in criminal proceedings) contains a wealth of helpful information. However, as attendee, Jane Hinton (The Intermediary Cooperative) pointed out, it is not realistic “to suggest that all professionals, whatever their role, should have the skills and abilities to build rapport and understand complex communication difficulties”.
William Scrimshire highlighted the extraordinary demand placed on counsel (in the absence of an intermediary) to perform their already very demanding primary role, while also monitoring attention and emotional regulation, simplifying vocabulary, requesting responsive adaptations, noting key points where their client indicated confusion for further recap in conference, rigorously checking understanding etc. Rupinder Jagdev highlighted that counsel and solicitors do not have backgrounds, nor specific training, in communication.
In relation to TAG, Robert Pettitt commented that this is often erroneously conceived of as a “panacea” for communication difficulties in legal proceedings, agreeing with William that implementing the required level of attuned communication assistance while running a case is not practical.
Participants also raised the inefficacy of many adaptations (beyond adherence to TAG) which the court can implement, particularly breaks.
Although the court can certainly schedule breaks, there are many cases in which a court user may decline them. Robert Pettitt commented that he had seen “good intermediaries” (when needed) inform the judge that, in fact, a break would aid the court user’s attention, emotional regulation or ability to continue effectively processing verbal information. A court user with a communication difficulty may decline adaptations which would facilitate their participation for a very wide range of reasons, from not wishing to appear to struggle in a court case regarding their ability to parent, to a wish to conclude proceedings as quickly as possible, or due to reduced insight into their needs and the strategies which would meet them.
In closing
Many other topics were explored over the course of this discussion, from the role of lay advocates, to the role of intermediaries when assisting litigants in person – far too many, in fact, to document in this post.
While recent judgments raise many concerns about access to support for family court users, it was exceedingly helpful to share thoughts and knowledge across professional divides. Communicourt are very grateful to 3PB for hosting this event, and to Matiss Krumins, Rupinder Jagdev and Robert Pettitt, for sharing their wealth of knowledge and helpful insights.
We hope that conversations on this topic will continue to take place across professionals involved with court users who have communication needs.
Interested in learning more about communication differences and difficulties which can impact participation in legal proceedings? The Access Brief is a library of free bite-sized guides to everything from ADHD at court, to how an intermediary can work alongside an interpreter to support a court user’s understanding of proceedings.
A judgment providing further consideration of the use of intermediaries in family proceedings was published on 18.04.2024. The [2024] EWHC 906 (Fam) judgment of the Honourable Mr Justice Williams, follows the recent judgment of Mrs Justice Lieven, which effectively imported guidance regarding the use of intermediaries in criminal proceedings into family cases (West Northamptonshire Council v KA & Ors [2024]).
Below you will find a quick guide to key points in Mr Justice William’s judgment, and some practical considerations which may arise in response. You can access our related guide to the judgment of Mrs Justice Lieven here.
Please note: This post is intended to provide informal guidance and the views of Communicourt at the time of publication. If you have questions regarding the instruction of an intermediary in a specific case, the matter should always be discussed directly with the presiding judge. If you require further information regarding our intermediary service, please contact admin@communicourt.co.uk or telephone: 0121 663 0931.
Can I still request an intermediary to assist in family proceedings?
Yes, applications for intermediary assistance at all stages of family proceedings can still be made and approved.
Recent judgments do not prevent a judge from granting intermediary assistance throughout (or at specific stages of) proceedings, provided it is “necessary to ensure that a ‘fair hearing’ is achieved either in relation to […] a party’s participation…” (see below).
When an intermediary report recommends intermediary assistance at any stage of proceedings, it is because the assessor deems this is necessary to ensure effective participation (as adjustments which can be implemented by court and counsel will not, in their view, be sufficient).
An intermediary assessment will consider the individual’s whole communication profile in detail, exploring:
The impact any observed difficulties may have on participation at all stages.
The effectiveness of strategies which can be implemented to overcome any likely barriers to participation.
Whether any effective strategies can reasonably be implemented by the court, or whether the individual will require the assistance of an intermediary to support their participation.
Information highly relevant to the test of necessity set out by Williams is included in the intermediary report, which can assist the court in making an informed decision regarding intermediary allocation. This, in our view, makes obtaining an intermediary assessment of great importance when working with a client who may have communication needs.
Background to the judgment
Mr Justice Williams considered a respondent’s intermediary application in care proceedings, applying the guidance of Mrs Justice Lieven (and therefore the parameters of R v Thomas (Dean)) to do so.
Our guide to these criminal guidelines relating to intermediary applications (which are now to be applied in family proceedings) can be found here.
In this case, the respondent’s legal team used a Part 25 application to apply for an intermediary (which was not the correct procedure – instead intermediary applications should be made as a “case management direction by the court of a similar nature to the direction for the appointment of an interpreter”.)
The respondent was reported to have a diagnosis of ADHD, but no evidence was provided to support this, nor the necessity of intermediary assistance.
The application was adjourned, with Mr Justice Williams stating: “The Mother will file the ADHD diagnosis she says she has received. It seems likely a psychiatric expert will be authorised to assess the mother given these issues and her long-term problems with drug and alcohol misuse. The mother’s team and this court will, should evidence emerge which suggests the necessity for participation directions including an intermediary, keep the issue under review”.
Relevance to intermediary applications
Mr Justice Williams sets out the reasons for this judgment as follows:
“I am delivering this judgment because this case seems to me to illustrate some of the issues which are emerging in the Family Courts in relation to the use of intermediaries. An intermediary can be an essential component in what the court provides to a party or witness to enable them to participate fairly in proceedings or in giving their best evidence and my own experience demonstrates their value in appropriate cases. 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. Their use is governed by the procedural regime established in FPR 2010 r.3A and PD3AA.”
We will return to key issues (such as necessity, and the cost of intermediaries) in the table below. Just to make a quick note about intermediaries as a “limited resource”:
Communicourt are one of several Managed and Approved Service Providers (MASPs) under the HMCTS HAIS framework. There are also many Approved Service Providers (ASPs) of intermediary services in England and Wales. As the largest provider of intermediary services on the framework, Communicourt has around 100 full time, contracted intermediaries across England and Wales, providing national coverage. Since the implementation of the HAIS framework in 2022, we have declined less than 0.1% of bookings.
In the table below, we have identified some key points from the judgment and some points we believe are important considerations in relation to intermediary applications:
Key points from the judgment
Points to consider
FPR r3A sets out the role of an intermediary in “very narrow” terms.
Mr Justice Williams highlights that the role of an intermediary, beyond the FPR definition (which relates to evidence only), requires further evidencing.
The role of an intermediary as referenced by Mr Justice Williams is, indeed, exceedingly narrow – Family Procedure Rules 3A.1 describes the “function” of an intermediary only in relation to supporting the communication of questions and answers during a court users’ evidence.
However, Part 3A goes onto set out a wider scope for the intermediary role, recommending that “the court must consider whether a party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions” (FPR 3A.4(1), and that the measures available to court includes both “(d) provide for a party or witness to participate in proceedings with the assistance of an intermediary” and “(e) provide for a party or witness to be questioned in court with the assistance of an intermediary”.
A wider scope is also set out in the Equal Treatment Bench Book, which much more closely reflects recent intermediary practice in Family Court, observing that a “vulnerable person is likely to need help not only during hearings but also away from court for the purpose of giving instructions and considering advice and options”.
Mr Justice Williams notes the “…the definition [in FRR 3A] should [not] necessarily be interpreted as meaning an intermediary can only perform those functions…”.
In current practice, intermediaries typically undertake a far wider range of duties to support a court user’s participation in family proceedings, doing so through a wide range of strategies tailored to the individual’s needs, from whispered simplifications in the courtroom, to explanation of key legal concepts using visual aids in conferences. Other aspects of the role can include checking understanding, and monitoring attention and emotional regulation, making recommendations in real time to mitigate these difficulties when they impact participation.
Communicourt intermediary reports clearly set out recommended strategies and adaptations which will support an individual’s participation, including measures which can be implemented by the court and strategies which, through practical necessity, will require implementation by an intermediary.
These measures, in many cases, go beyond communicating questions and answers during evidence, instead including strategies to support the individual to follow the thrust of proceedings (e.g., key legal arguments, judgments, expert evidence etc.) in order to ensure effective participation throughout.
At Ground Rules Hearings, it may now be necessary to have a more detailed discussion about the role of the intermediary in proceedings (particularly beyond your client’s evidence). The intermediary report will detail any observed communication needs and the likely impact on their effective participation. We recommend reviewing the intermediary report in detail and having a discussion with the assigned intermediary prior to Ground Rules (they will be able to answer any questions about which adaptations or types of intermediary assistance will be required at different stages).
The test for whether it is “necessary to make the participation direction” in relation to an intermediary application, to ensure a fair trial, is considered.
Key points for the court to consider include those set out in FPR 3A.7(a)-(m):
– Whether the party or witness suffers from a mental disorder or otherwise has a significant impairment of intelligence or social functioning
– The nature and extent of information before the court
– Whether a matter is contentious
– Any characteristic of the party or witness which is relevant
– The measures available to the court
– The cost
Whether an intermediary is necessary to ensure fair process is an important matter for the presiding judge. There will be many factors to consider, which the assessing intermediary may not provided with information about (for example, whether the matter is contentious or whether the case will involve complex expert evidence).
As such, it is for the judge to make a holistic decision regarding the necessity of intermediary assistance, drawing on all available information in the case.
An intermediary report, therefore, is a very useful resource which can support this holistic decision-making process. While the intermediary may not have information regarding the likely content of the case, the judge may not have experience of communicating directly with the individual, nor granular insight into their likely communication needs in the courtroom.
A note on costs: Communicourt, Triangle, The Intermediary Cooperative and Aspire are HMCTS Appointed Intermediary Service (HAIS) providers, managed by the Ministry of Justice. HAIS fees are set by HMCTS and were not competed on as part of tender submissions.
As noted by Williams, intermediary assistance is a valuable resource which does incur additional costs. However, there are many cases in which a “whole trial” direction for an intermediary may, in fact, save costs.
There are a range of reasons why denying an intermediary application may prove to be ‘false economy’, from the costs of solicitor attendance in place of an intermediary, to delays caused by counsel requiring much longer breaks to explain and recap key information (which can often be undertaken by an intermediary in the courtroom) before taking instructions. The additional costs and delays caused by appeals and reopening hearings (as in this recent case), should also be considered.
Unpredictable proceedings: It is also important to consider that family proceedings are often lengthy and unpredictable. For example, expert witnesses can be required at the last minute, or a party’s position may change on the morning of a Final Hearing. Court users with communication needs may have to make important, informed decisions which require them to understand emotive, complex and abstract information, under considerable pressure.
To avoid delays to cases, we recommend that, if there are any concerns about a court user’s communication, a referral is made for an intermediary assessment at the earliest opportunity (assessment wait times are approximately 1-2 weeks and reports are completed within 5 working days. Urgent assessments can typically be accommodated much sooner and are regularly completed on the next working day). This means that, if case content changes and an intermediary is required at short notice, they can be allocated as soon as possible.
Other adjustments the court can make should be considered when considering whether an intermediary is a “necessary” measure. Only if these adjustments will not ensure the court user cannot participate fairly should an intermediary be approved. Measures the court should consider include the following from PD3 AA:
– Adapting the structure and the timing of the hearing
– Adapting the formality of language to be used in the court
– Separate court entrances and waiting areas for different parties
– The form of a witness’ evidence (for example, through an alternative communication medium)
– Preventing repetition of questions by multiple advocates
– Agreement of questions or topics to be put to the witness in advance
– Pooling of questions to be asked by one advocate or the judge
– Any other alternative arrangements for the individual’s evidence
– Whether any previous evidence given by the witness can be used in place of live evidence
In 22% of Communicourt intermediary assessments (since the HAIS framework began in April 2022), Communicourt intermediaries do not recommend intermediary assistance.
This may be because the individual’s needs are so significant that intermediary assistance will not meaningfully support their effective participation, or because the court can implement adaptations without an intermediary to ensure the individual will be able to participate effectively.
The recommendations the court can implement independently are clearly documented in our reports, when we do not recommend an intermediary.
When an intermediary is recommended following an intermediary assessment, it is because the assessing intermediary has observed communication difficulties which cannot be accommodated without the assistance of the intermediary, and has found that strategies which can be implemented by the intermediary will support effective participation.
While there are many skilled advocates, well-versed in The Advocate’s Gateway (TAG), and adept at tasks like simplifying information and checking understanding, it is important to consider the very considerable demands upon counsel.
For example, in hearings, counsel will likely have their back to their client, taking a careful note of proceedings, making submissions, putting questions to a witness – this makes it exceptionally challenging to implement many strategies which may be required to support their client’s participation, from closely monitoring attention and emotional regulation (and implementing strategies to support in these areas when they impact participation), to answering their client’s questions, taking note of any matters they raise which require further discussion (which the client themselves may later forget to address in conference), simplifying and summarising key points which arise, and using visual aids (alongside other strategies) to ensure their client can follow the thrust of proceedings.
This is by no means an exhaustive list of the strategies an intermediary can implement in the courtroom itself, but perhaps illustrates a few interventions the court, practically, cannot make without intermediary assistance.
The same may also be true in the conference room, where counsel may have very limited time to undertake their primary role in proceedings, while also simplifying and recapping key points, checking understanding, and putting in place a range of other strategies to support their client’s participation.
It is important to take a realistic view of what the court can and cannot implement. For example, in the experience of our intermediaries, the suggested measure of “adapting the formality of language to be used in the court”, is unlikely to be consistently or effectively implemented, to ensure the individual can reliably follow key points.
For instance, there may be complex points which the court and advocates are unable to simplify in real time. Equally, it is unlikely that all legal professionals in the courtroom will have a clear picture of the individual’s specific receptive vocabulary and receptive language skills, preventing them from adapting their language effectively, in real time, while also undertaking their primary roles in the courtroom.
The “spectrum of vulnerability” is considered: “Only towards the far end of the spectrum will be the cases where an intermediary is necessary for the giving of evidence. Only at the very far end will be cases where an intermediary is required for the whole of a hearing and only in the very rarest cases is an intermediary likely to be necessary to enable the party to give instructions in advance of a hearing. Of course, every case will ultimately depend on the evidence before the court, and it is for the experienced family judges to determine what is required to make the process fair.”
This section of Mr Justice William’s judgement appears to further ‘unpack’ the “exceptionally rare” use of intermediaries recommended in Mrs Justice Lieven’s judgment.
We agree that communication needs exist on a spectrum. We also agree that the necessity of intermediary assistance should be determined by the presiding judge, with a clear overview of the service user’s needs, the case and the evidence.
An intermediary assessment is, therefore, an important tool that can assist judges in making a holistic decision regarding whether an intermediary is necessary to support effective participation and, if so, at what stages. We strongly advise that an intermediary assessment is sought, to ensure that your client’s communication needs are considered in detail, and relevant adaptations at different stages are considered by the court.
In terms of “whole trial” directions for an intermediary, it’s important to consider the impact of earlier intermediary assistance upon an individual’s effective participation, and upon proceedings as a whole.
In legal conferences, for example, intermediary assistance can significantly improve a court user’s understanding of the matters and evidence in a case – and the decisions they must make, enabling them to give informed instructions. Support at this stage can aid the smooth-running of a case, by ensuring the individual’s informed position is communicated clearly to their legal representatives and the court – minimising the likelihood of later changes in position, as well as difficulties or misunderstandings arising between legal teams and their vulnerable clients.
Similarly, intermediary support during hearings (not just when the individual gives evidence) often enables them to “follow the thrust” of proceedings and therefore participate effectively at all stages.
Evidence is required to establish that an intermediary is necessary. This may be (but is not limited to): – An expert report permitted by the court
– A court user’s medical history
– Evidence from the court user’s legal team, demonstrating that “…even by deployment of all their skills as a solicitor and counsel using the Advocates Toolkits, they do not consider the party or witness can participate fairly without an intermediary”.
Legal professionals have reported that it is increasingly challenging to gain approval for expert reports and intermediary assessments. This includes cognitive assessments, which may include a recommendation for an intermediary assessment (therefore making it more challenging to support applications for intermediary assessments).
In Criminal proceedings, intermediary assessments are generally funded through Legal Aid Prior Authority, allowing legal teams to obtain intermediary reports, which can then be considered by the court in full. In Family proceedings, these assessments are funded by HMCTS, requiring approval by a judge.
It may, therefore, be the case that a judge in Family proceedings effectively takes a view regarding the necessity of intermediary assistance at the ‘application for assessment stage’, without access to reports which provide key information about the matters highlighted in Williams’ judgment (the individual’s communication profile, the likely impact on participation, the strategies required to support participation, and whether or not these can be realistically implemented by the court).
It is also important to consider that your client’s medical records may not contain information about possible communication needs or diagnoses likely to impact their participation in proceedings (due to lack of access to services, masking of difficulties, underdiagnosis etc). Many Communicourt service users do not have formal diagnoses, but present with a wide range of marked communication needs, resulting in them facing barriers to participation in legal proceedings.
If you have any questions regarding intermediary assistance for your client in light of this judgment, please contact admin@communicourt.co.uk or telephone us on 0121 663 0931 (Mon-Fri, 9am-4.45pm).
Every quarter, Communicourt staff gather in Birmingham for our Saturday Team Day. This is an opportunity to connect with colleagues, share practice, engage with CPD (Continued Professional Development) and celebrate our successes as an organisation.
This June, we celebrated the LOVE (Living Our Values Everyday) Awards. From amongst the 32 nominations made across Communicourt, we were delighted to present awards for Collaboration, Courage, Innovation, Diversity and Respect to Tegan, Katie, Sophie, Bradley, Millie and Cristina. You can read more about their winning nominations below*:
*identifying details have been changed.
Courage: Cristina Lojo-Taboada
Cristina assisted a court user who had a history of self-harm and suicide attempts. When Cristina observed a worrying issue in relation to this history during trial, Cristina immediately raised it with their barrister, who in turn, raised it with the Judge. The Judge called Cristina to the witness box to explain what she had seen and she shared her concerns about the situation. As a result, the Judge requested measures were taken to resolve the safety issue. Cristina demonstrated great courage and attention to detail by raising the issue in the first place. Without the courage demonstrated by Cristina, the service user could have been at great risk.
Innovation: Sophie Derbyshire
Sophie assessed a court user who had a diagnosis affecting their expressive abilities. A previous intermediary assessment had been attempted, but had been terminated due to the considerable difficulties experienced by the court user. Over two sessions, Sophie built a very strong rapport with the individual, and adapted the entire assessment process to allow them to communicate with her through emojis. Sophie worked so hard during the assessment to ensure she accurately understood the individual’s intended meaning via this alternative communication method. Ultimately, she was able to complete a full assessment, providing the court with valuable information about the person’s communication needs and recommendations to support their effective participation in proceedings.
Diversity: Bradley Dunn
Bradley has always been a really positive presence in our group-wide Neurodiversity Network project. In May he stepped up to host a drop-in session, which garnered lots of great sharing and discussion, and resulted in some great ideas to take the Neurodiversity Network forward. Hosting was a bit out of Bradley’s comfort zone and perhaps was a bit daunting when lots of unfamiliar faces from across six companies turned up! But he did a cracking job and should be very proud.
Respect: Millie Watson
During proceedings, Millie made an unusual recommendation about a sensitive issue in a discreet way, which showed great respect for the court user, while still supporting their needs. The issue in question was affecting the court user’s attention and emotional regulation. Millie handled the situation very sensitively and professionally, by building rapport, gaining consent from the service user to discuss matters with counsel, and asking counsel to contact the judge via email (in order to discuss the matter discreetly). The judge was very open to the recommendations Millie raised and these were implemented. The intermediary did a great job at handling a sensitive issue professionally and respectfully.
Collaboration: Tegan Davis (Intermediary) and Katie Cole (Bookings)
Tegan and Katie were absolutely amazing in supporting an intermediary colleague through a difficult assessment, which involved issues relating to informed consent. The court user was unable to give informed consent to participate in the assessment (even when many different strategies to support their understanding were implemented), and a challenging situation then arose. Tegan provided reassurance and support over the phone. She then spoke to Katie, who took practical steps, liaising with others, to resolve the situation. The intermediary felt hugely supported by Tegan and Katie, and grateful for their help in the face of this tricky issue.
Disclaimer:The views expressed in this case study reflect the experiences and opinions of the author, and do not necessarily reflect the official policy or position of Communicourt.
A strange paradox about the intermediary role is that, in many (although not all) cases, the more effectively an intermediary supports someone with communication needs to participate in their legal proceedings, the less visible their work can be in the courtroom.
The better emotionally regulated a court user is, the better able they are to maintain their attention, to understand questions put to them in evidence, to understand legal concepts, the court process and the evidence of others – the more smoothly proceedings run, with fewer interventions required by the intermediary in the courtroom itself.
Beyond breaks
For the judge, who makes decisions regarding intermediary applications, the work of an intermediary is often only visible when breaks, adjustments and adaptations are requested in the courtroom. From conversations I have had, there is sometimes the perception that intermediaries do little more than request breaks.
This perception becomes especially significant when judges are considering intermediary applications, and need to decide whether sufficient adaptations can be made by the court, in the absence of an intermediary, to mitigate communication difficulties.
The court certainly can implement breaks without the assistance of an intermediary. Although, as a side note, I have witnessed judges ask court users with communication needs directly whether they require a break. In many cases the individual will respond, “No”, either through a desire to conclude proceedings as swiftly as possible, through lack of insight into their needs, or through feeling unable to advocate for their own needs when spoken to by a judge. However, it is evident (from the vantage point of an intermediary) that a break is required to support the person’s attention, emotional regulation and/or ability to continue processing verbal information effectively.
In many cases, much of the most impactful work of an intermediary is undertaken ‘behind the scenes’ in conference rooms and waiting areas, and may only be visible to the court user themselves and their legal team. Such work may include (but is certainly not limited to):
Supporting emotional regulation throughout proceedings through building rapport and implementing person-centred strategies (from teaching breathing techniques to manage anxiety in hearings, to implementing methods for the individual to express feelings of frustration in a non-disruptive way – for example, encouraging them to whisper their response to the intermediary, with a clear understanding that this information will be written down and shared with counsel in conference, to ensure they feel heard).
Supporting understanding of the court process, through pre-hearing familiarisation visits, visual schedules and other methods (which can have a knock-on positive impact on attention, emotional regulation and overall understanding of the case).
Supporting understanding of key issues and legal concepts in the case through simple explanations and/or the use of visual aids in conferences (which can then also be used in the courtroom). This work helps ensure that the court user can give clear, informed instructions to their legal team (preventing unexpected changes in position, or misunderstandings arising) and follow the thrust of hearings more effectively.
Working with counsel to ensure the format of questions to be put to the court user in evidence will be clearly understood, and can be clearly responded to.
Working with the court user in advance of their evidence to ensure they understand the process of giving evidence (from the meaning of the affirmation, to what steps they should take if they do not understand a question, or lose focus etc).
Supporting understanding and retention of important information in the case. For example, through frequent recaps of key points in explanation breaks, or through simple visual aids and/or ‘easy read’ documents, which the individual can take home, clearly setting out key information, such as a contact plan or the rules contained in a Sexual Harm Prevention Order.
This is by no means an exhaustive list of the many ‘invisible intermediary’ tasks a judge may not be privy to in legal proceedings. In fact, as much of our work is person-centred and directly responds to an individual need or communication preference, it is challenging to fully catalogue the ‘unseen’ work which may take place to support effective participation in each, unique case.
Case study
To illustrate this principle, I have provided a case study below. (All names and identifying details have been changed to protect anonymity).
Background
I attended a short hearing to assist a court user. At the last minute, the court user was permitted to attend remotely. I was not informed of this change and attended court in person. No alternative means of communication between myself and the court user had been discussed or arranged. Counsel did not raise the matter with me, so I needed to independently explore ways to assist the court user remotely.
Pre-hearing
I asked for the court user’s contact information from counsel, and called them to explore what communication devices they had and what could be used effectively by them during the hearing. I also used this call to develop rapport, to ensure they felt as comfortable as possible communicating with me.
I established that they would join via a tablet and felt able to text me during the hearing using their smartphone. I was aware from the intermediary report that they were able to read short, simple written information. We successfully trialled communicating via text prior to the hearing. During the pre-hearing call, I provided a simple outline of the structure of the hearing, and the key topics which would be raised (information I had obtained from counsel and sought permission to recap and check with their client).
In the hearing
At the outset of the hearing, before the judge entered the courtroom, the court user texted me, asking who was present. This reassured me that they were able to use this communication channel while joining remotely. I asked those in the courtroom to stand up and introduce themselves and their role via the link, and did so myself. I also thanked the court user for sending me this question, encouraging them to keep using this strategy to raise any difficulties or questions they may have.
Although hearing attendees are often formally introduced to the judge at the outset of the hearing, this task is usually undertaken very rapidly by one representative in the case. This can be challenging for some court users with communication needs to follow, and it can be difficult to identify who each person being referred to by the ‘introducer’ is.
When the judge entered and began the hearing, I sought permission to continue communicating with the court user via text. The judge raised concerns about my attendance, expressing that this was the type of hearing in which intermediary attendance was not appropriate, as I would be unable to be of assistance to a remote court user.
However, as the hearing progressed, unexpected, urgent issues which had not been explained in advance to the court user were raised. Throughout the hearing, I had relayed simple summaries of key points to the court user via text. They responded each time with their view on each matter in simple terms. This indicated that they had read my simplification and understood the thrust of the hearing. When this new matter arose, they expressed confusion via text, and I provided further, simplified explanation.
Once they had a clear understanding of this new matter, they raised a clear view, which I immediately shared with counsel. Counsel could then communicate the court user’s new instructions on the point in their submissions. This was a very important instruction in the context of the case, which changed the trajectory of the hearing, and the next steps in proceedings.
Reflections
Without intermediary assistance in this case, albeit remote, it is my view that the court user would not have understood or followed the new, important matter which was raised. I take this view due to the confusion they expressed via text in response to my initial summary of the point.
In the event that the matter had been attended to and understood by the court user, I am also of the view that they would not have been able to independently raise their new, pivotal instructions with counsel. This is due to two factors:
The likely absence of a pre-determined channel of communication with counsel, which could have been used effectively during the hearing
Particular difficulties (which I will not explore here to maintain anonymity), which would have made it exceedingly unlikely that the court user would have felt (or been) able to verbally interject via a remote link, or raise their hand, to indicate that they needed to speak with their representative, during the course of the hearing.
The effectiveness of remote intermediary assistance (or otherwise) is a whole issue worthy of another blog post, but I believe this case study illustrates that crucial communication assistance can still be provided in this medium. I also believe it illustrates that a great deal of intermediary work, which can significantly support effective participation, is often ‘invisible’ to judges and other legal representatives.
I hope this blog goes some way towards unpacking some of the ‘unseen’ aspects of the intermediary role. This is simply one example, in my view, of the often ‘invisible support’ which prevents miscommunication, and which helps ensure the effective participation of court users with communication needs.
In my experience, and the experience of Communicourt colleagues I have spoken with, there are many, many other such examples of assistance provided ‘behind the scenes’. These examples will look different to my case study above, as intermediary strategies must be person-centred and are case dependent. But whatever those interventions may be, they are likely to be quietly making a considerable difference to the court user’s effective participation, and to the proceedings as a whole.
Congratulations to Maddy Burt, who has been awarded a Gray’s Inn Scholarship to support her undertaking the Law Conversion Course and Bar Course. Maddy worked as a Communicourt intermediary, and we are delighted that she will be bringing this experience into her future legal practice. Maddy kindly shared her professional journey, her next steps and what she learned during her time as a court intermediary:
What have you been up to since leaving Communicourt?
I left Communicourt last September, and it has been a whirlwind since then! I moved from London to York, and jumped into two mini pupillages on the northeastern circuit. I then began my law conversion course, which has been eight months of intense study (with Christmas and Easter spent revising for exams). I have enjoyed the course greatly, but am looking forward to having some time off.
Tell us about your scholarship.
I am very grateful to have received a scholarship from Gray’s Inn (one of the four Inns of Court all barristers are a part of) for both my law conversion course and my upcoming bar course. Having the support of Gray’s Inn this past year has helped me financially, given me confidence in my career choice and ability, and allowed me access to all the Inn has to offer, such as mentoring schemes and advocacy development opportunities. I wouldn’t be able to study the bar course full time this coming September without Gray’s Inn continued support through the bar course scholarship.
What’s next for you?
I’m spending the next couple of weeks in court in London and Leeds on mini pupillages, and then I’ll be taking some time off over the summer before starting the Bar Course in September. I’m really looking forward to getting stuck into the advocacy side of things on the Bar Course.
What are your current career goals?
The areas of law I am most interested in at the moment are crime and family. They are areas I predominantly worked in as an intermediary, and areas I am excited by the prospect of working in as legal counsel. In particular, I am drawn to the importance of client care in both areas, working with people going through a very difficult time, and the frequent opportunities for courtroom advocacy. Depending on the case, there can also be a degree of overlap between the areas.
Did you learn anything from your time as an intermediary, which has supported your career development?
An invaluable skill I learned as an intermediary was communicating with a wide range of people. I would spend a morning presenting a ground rules hearing to a courtroom, justifying and expanding on special measures to a Judge and barristers from the witness box. Then, I would spend the rest of the day breaking down complex court information and expert evidence in order to support a service user with difficulties retaining information. This has further developed my confidence in public speaking, and my creativity in breaking down information – I made use of all sorts from whiteboard drawings to post-it note diagrams.
I also learned how to manage my time effectively, juggling both intermediary assessments and writing up reports with trials and hearings, while travelling around the country – an essential skill to take into the profession of a barrister!
Why did you choose to work as an intermediary?
I was drawn to the intermediary role because of the opportunity it gave me to be in a courtroom on a daily basis in my own capacity as a communication specialist, supporting those with additional needs who would otherwise struggle to engage in the process. Throughout university, I had tutored English to students with learning difficulties and so I had already adopted various strategies to support people with understanding and retention. I saw the intermediary role as an opportunity to continue doing this, while also being immersed in a legal environment.
Has your view of the intermediary role changed, since continuing your legal studies?
It has been interesting attending mini pupillages and being able to watch an intermediary in action – something I rarely got to do while working as an intermediary. I suppose my view of the profession has solidified my feeling that having an intermediary can really support justice being achieved, by allowing people to fully engage in court proceedings involving them. In particular, I feel it is essential for barristers to have vulnerable witness training from as early a stage as possible, both for times when an intermediary is not available or required and for barristers to work most effectively with intermediaries.
The reality is that many more people would benefit from intermediaries than are able to have them, and so ensuring barristers are equipped in how to support their clients who may have communication difficulties is imperative.
Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs.
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![“I was working with a court user who was hard of hearing. After learning a little more about him, I asked him to help me practice my finger spelling [in British Sign Language], which really helped build rapport. I think because this was something he was better at than me, it really helped to break down barriers and made him feel comfortable accepting my support”.](https://www.communicourt.co.uk/wp-content/uploads/2024/11/Int-v-Adv-Insta-1600-x-450-px-1-1024x288.png)
