New Guidance from the President of the Family Division, Sir Andrew McFarlane, has been published regarding the use of intermediaries in Family Proceedings. This new Guidance furthers discussions regarding the intermediary role in Family cases, raised in early 2024 Judgments provided by Mrs Justice Lieven and Mr Justice Williams.
Communicourt will be considering and responding to this update over the coming days and weeks, with a focus on how we can best support the effective participation of Court users with communication differences and difficulties, against the backdrop of change and challenges within the Family Court.
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.
March 18th – 24th is Neurodiversity Celebration Week. While awareness days in general may not be without their faults (see: recent International Women’s Day criticism), these annual markers do provide an important opportunity for visibility – and to inspire action from both individuals and organisations.
The Neurodiversity Celebration Week organisers are hosting a week’s worth of free drop-in sessions and learning opportunities, covering everything from late-discovered autism and the menopause, to good practice for neurodiversity professionals. With many sessions exploring neurodivergence in the workplace, and in keeping with this year’s #ThisISND theme, we wanted to share some insight into the working lives of our intermediaries who identify as neurodivergent.
The following blog post was written by a neurodivergent intermediary, who has been part of a team working to establish a Neurodiversity Network for Communicourt – and the wider group of businesses that we belong to. The Neurodiversity Network provides a supportive space for colleagues and advocates for neuroinclusive practices.
In this post, our author reflects on their experience of working with neurodivergent court users as a neurodivergent intermediary, the question of disclosure at work, and the benefits of connecting with neurodivergent colleagues.
Neuroinclusivity and the intermediary role
I work as an intermediary, a role held primarily by those with speech and language therapy and psychology training, in a service built to support people with communications needs and differences. Intermediaries are no strangers to talking about neurodivergence. Never mind a week, we talk about this stuff every day! At least, when it comes to our service users.
If a service user tells us that they have a condition such as ADHD, Autism or Dyslexia, we jump into action considering the areas to explore with them in assessment, the aspects of proceedings that might present an additional challenge, and the adjustments to advocate for. But it’s not always easy to treat our own neurodivergence with the same attitude.
Recently, work has resumed in establishing a Neurodiversity Network for staff members across our organisation. As part of the initiative, I have started hosting lunchtime drop-in sessions for employees across the group.
Talking with other neurodivergent people who are navigating the world of work was such a positive experience. I practically bounced out of the last session, buoyed by the acknowledgement of how hard we secretly work below the surface, the empathy between attendees, the sharing of useful strategies, and the appetite for connection and change (part of ADHD can be having big feelings, can you tell?).
Why don’t people disclose neurodivergence in the workplace?
One explanation could be the feeling of ‘otherness’. While we meet neurodivergent service users every day, we much less frequently meet colleagues and other professionals who are outspokenly neurodivergent. It can feel isolating and precarious to think you are an outlier. However, there are many more of us in the workplace than one may realise. 1 in 10 working age adults are neurodivergent. In our own Communicourt diversity survey, 17.4% of staff who responded identified themselves as neurodivergent. We are, undeniably, here, and make up a very significant minority of staff.
The way we, as intermediaries, approach our own neurodivergence may also relate to the work we do. As intermediaries, we are often supporting neurodivergent service users in acutely demanding scenarios with very high stakes. Legal proceedings could change the future of their family or result in imprisonment. Although not universally true, our service users may also not have had the same advantages as us – a secure upbringing, consistent access to education, financial stability, diagnoses, medication, support…
In comparison, the barriers we face at work and in everyday life can feel less important and consequential. We can de-prioritise and minimise our own struggles as a result. It can also make it feel uncomfortable to raise difficulties we may be having against the backdrop of the experiences of our service users.
There is also the fear of stigma and negative perceptions. I myself am guilty of this. Those who have seen me deliver a presentation or lead a meeting, will probably have heard me acknowledge that my ADHD may colour the experience. I tell everyone about my shocking memory, the pomodoro method, serotonin-boosting to-do lists, and my special clock for focusing when I need to create a little motivational urgency. But I don’t acknowledge my ADHD at all with other professionals outside of my Communicourt colleagues. The frank truth is that I don’t want them to think I can’t do my job, that I am a liability, or that they would be better off with an intermediary whose attention span is not powered by (prescribed) low-dose amphetamines.
These feelings can also extend to worries about how colleagues or employers may view you. Raising things you find difficult or requesting support to address your needs can daunting, particularly if you’re new to a company, or looking to progress into a new role. This often leads to what might be described as the quintessential neurodivergent experience – spending an enormous of amount of time, energy, effort and stress behind the scenes to deliver what everyone else seems to be doing with consummate ease, to the detriment of your health, wellbeing and happiness.
Choosing to disclose
Although “there is no legal or professional obligation on workers to disclose a neurodivergent condition” (Thinking Differently at Work, GMB Union), disclosing neurodivergence to an employer can help ensure that reasonable adjustments are made to remove barriers to your work.
Disclosure is not for everybody and may depend on your personal preferences and how supportive you perceive your employer to be. However, in a supportive work environment, disclosing neurodivergence can have a number of benefits, including arranging adaptations and alleviating some of the stress and energy involved in masking (more on that later). Here are a few of the reasons I have found disclosing my neurodivergence at work helpful:
Giving yourself a break An increasing number of people are being diagnosed with neurodivergent conditions in adulthood. There are also lots of undiagnosed people who identify as neurodivergent. Regardless of whether an official diagnostic process is involved, many people find that having label to explain some of their differences or difficulties provides a huge relief, and can help reduce self-criticism.
In an interview about her later life ADHD diagnosis, Communicourt founder Naomi Mason says, “Instead of blaming myself I blame the ADHD now. I don’t use ADHD as an excuse to other people, but I use it as an excuse to myself – I get cross with the ADHD rather than blaming myself and then my confidence going down”.
Acknowledging the impacts of neurodivergent conditions in the workplace can further that benefit. For people with dyslexia and dyscalculia, constantly apologising for spelling or numerical errors as personal failures can really wear on your self-esteem, as does feedback about making ‘careless mistakes’ on a piece of work you spent extra time going over so carefully. Being able to acknowledge the cause of your difficulties can avoid these errors feeling like a personal failure. Some of my neurodivergent colleagues, for example, add a quick explanatory comment to the top of a piece of work before it is proofread.
Accessing support and adjustments in the workplace People with neurodivergent conditions have the same protections as people with disabilities under the law. Making employers aware of your neurodivergence brings you under that protection, and means that they are obliged to make adjustments and provide support where necessary. That support can come in a variety of forms, depending on the needs of the individual.
Naomi Mason (Communicourt founder) explains, “I do tell people I have ADHD now […] because I think people need to know that people that appear to be ordinary people might have all sorts of things going on behind the scenes. I can concentrate in meetings, but I come out of a meeting much more tired than other people do, because it’s very difficult to stay focused”
Reasonable adjustments may include practical measures such as screen filters to reduce sensory overwhelm during computer work or improve reading accessibility, the use of quieter parts of the workplace, or the provision of assistive apps or software.
Neurodiverse employees can also be supported by adjustments to how aspects of their roles and workload are communicated. Again, this will different for each person. For me, executive functioning difficulties can be eased, and lots of time saved, by team leaders and managers clearly outlining which pieces of work should take priority. For other neurodivergent people, adjustments to communication at work might involve being sent a follow up email to confirm information that is given over the phone,the use of instant messaging and text-to-speech apps in place of phone/video calls, or the use of audio recording and dictation tools to support note-taking and retention of information.
Sharing your expertise The saying goes, that when you’ve met one person with ADHD… they’ve probably got an in-depth knowledge of time management tips they can share (did I mention my special clock?). Neurodivergent people, who often have different strengths and difficulties to the majority, often develop useful methods and strategies which can be a source of valuable source of knowledge for other staff.
The principles of working in a more neuro-affirming way can often benefit all employees – for instance, implementing accessible meeting guidelines can ensure all voices are heard and discussions are run in a productive, organised manner.
At Communicourt, neurodivergent intermediaries can offer extra, personal insight into the strengths and needs of some of the neurodivergent people we work with, being experts by experience as well as trained communication specialists. The value of this was apparent recently when intermediary Aoife was nominated for a LOVE Award for sharing their experiences of neurodivergence with colleagues during a training session. Their insight highlighted helped to educate colleagues, who then voted Aoife as the winner of their awards category.
Benefitting your organisation Not to get all corporate about it, but an increasing number of businesses and organisations are recognising the value of investing in neurodiversity. Companies across a wide range of industries (from Universal Music to JPMorgan Chase) have taken steps such as appointing neurodiversity leads to head up hiring, inclusion and development programs. Over the past two years, 600 organisations have signed up as members of the Neurodiversity In Business Initiative.
Research by Deloitte Australia found that teams that include and support neurodivergent people are often more effective and productive than those that do not. Industry research additionally has shown that consumers prefer doing business with companies with a workforce that is diverse. EARN (Employer Assistance and Resource Network) suggest, “a workforce that represents the customer base, including neurodivergent people, can help show a business’s commitment to its community.”
Some neurodivergent people have heightened levels of focus, attention to detail and pattern-recognition. Others thrive in tasks that require dynamic, out-of-the-box, creative thinking. Some are in their element working independently and solving a problem in their own way, whilst others flourish in more collaborative activities, engaging with colleagues to spark new ideas and make connections.
Embracing neurodiversity allows organisations to benefit from a diversity of perspectives, incorporating a range of views and experiences. Being informed about the diverse skills and needs of employees and providing adjustments and support, where needed, enables employers to make the most of everything their neurodivergent employees have to offer.
Alleviating some of the pressure to mask Masking refers to hiding or concealing your differences, in order to appear neurotypical. It can be exhausting. For example, someone who is autistic may spend a huge amount of effort suppressing their natural behaviours (like stimming) and pretending that they are not overwhelmed. At the same time, they may also be observing what other people around them are doing and trying to appear the same – all while doing their everyday work.
Trisha Dunbar, writing for for/by, describes the effort that went into concealing her dyslexia at work. “I got good at hiding my learning differences. Determined to avoid spelling or grammar errors, I would double- or even triple-check everything I produced.”
Disclosing neurodiversity can reduce this additional, secret workload.
“I stopped wasting energy on suppressing my behaviors. I’m now making active decisions to live the life that best supports my ADHD. It’s raised my self-esteem and my self-respect. And it’s made life even better” – Kim To, writing for for/by. Finding peer support “The greatest help, though, has been finding a colleague to confide in about my struggles. I don’t disclose more than I’m ready to, but being even just a little bit open at work about my ADHD has helped me feel more confident in my abilities. Support is a huge help when you’re feeling alone in your challenges.” – Myra Flores writing for for/by.
As touched on previously, conversation about neurodiversity in the workplace is on the increase, both in individual organisations and in cross-sector initiatives such as Neurodiversity Celebration Week (which this year features several events centred on the workplace, which can be rewatched via their event pages).
I have felt, first-hand, the difference that inclusion policy, informed staff and leadership, and a culture where neurodivergence can be disclosed and supported makes to my working life. But it’s the connection with other neurodivergent colleagues which fired the bout of hyper-focus that resulted in this blog post.
The Neurodiversity Network drop-in sessions held over recent weeks revealed the appetite for peer connection. Attendees from across the RCI group braved the daunting prospect of joining a video call with a bunch of strangers to talk about the things that can make us feel ‘different’. Some of us had long-standing diagnoses, some had received recent adult diagnoses and others were at the very start of exploring possible neurodivergence. After a few awkward introductions were made, conversation shifted to all the things we have in common.
Difficulties, quirks, strengths, strategies and things we’d like to learn more about. I found myself vigorously nodding along, and having to regularly mute myself on Teams, such was my instinct to say ‘me too!’ so often. We seemed to swiftly shed any of the usual hesitation we might usually have about announcing, in a work-related setting, all the things about our job we most struggle with.
We’re only two sessions in, and I hope that we will reach many neurodivergent people across the network in the weeks and months ahead. The need for and value of establishing a Neurodiversity Network feels undeniable, to provide a regular space for this connection and a digital space to store the resources and advice shared.
A huge thank you to our author for sharing their experiences and insights – and for playing a crucial role in setting up our fledgling Neurodiversity Network. The Communicourt team and wider RCI Group are really excited to see this supportive space flourish and support our organisation to continually improve neuroinclusivity.
Neurodivergence is not only an important part of Communicourt’s internal practices, it is also a big part of the work we do in the courts. Legal proceedings can include a huge number of barriers to the effective participation of neurodivergent court users. Our job is to advocate for adaptations and implement strategies which remove those barriers, giving our service users fair access to proceedings which could shape the course of their lives.
If you are a legal professional working with a client who is neurodivergent, you may find our library of free resources helpful. The Access Brief includes quick ‘bite-sized’ guides to working with court users with a wide range of diagnoses and communication differences, including autism, ADHD, learning disability, numeracy difficulties and literacy difficulties. You can download guides for free from the Communicourt website.
In January 2024, a new High Court Judgment from Mrs Justice Lieven was published, including guidance on intermediary use in family proceedings (West Northamptonshire Council v KA & Ors [2024]). The case concerned a mother who required a deaf intermediary (a highly specialised service performed by precious few professionals currently working in England & Wales, and not offered by Communicourt). The case was subject to considerable delays due to non-availability of a suitable intermediary.
Below you will find a quick guide to what has changed, and extra information about some practical considerations which may arise in response.
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.
Update: A further judgment relating to the use of intermediaries in family proceedings was handed down by Mr Justice Williams in April 2024. You can learn more about this further judgment here.
Can I still request an intermediary to assist in family court?
Yes, applications for intermediary assistance at all stages of family proceedings can still be made and approved.
The new guidance does not prevent a judge from granting intermediary assistance throughout proceedings, if there are “compelling” reasons to do so (see below).
What did the guidance say?
Ms Justice Lieven noted that guidance regarding intermediary appointments in the family court was not clearly set out in the Family Procedure Rules or any Practice Direction. She advised the guidance used in criminal proceedings should also be applied in family proceedings. As in criminal cases, intermediaries can still be used throughout family proceedings, subject to applications.
In some cases, an intermediary may only be approved to assist family court users at certain stages of proceedings (for example, when evidence is particularly complex, or during the court user’s evidence).
The key points from the R v Thomas (Dean) guidance which the family courts will now adopt are as follows:
R v Thomas (Dean) guidance
Points to consider
Intermediaries should only be appointed if there are “compelling” reasons to do so.
Communicourt only recommends intermediary assistance when the assessing intermediary finds there is a compelling reason to do so. The reasons for the recommendation are clearly set out in the intermediary report, with reference to Appendix 1 (which documents observations and findings from the assessment in detail, supporting the recommendations we make).
Communicourt reports highlight observed communication difficulties and the likely impact of these difficulties on a court user’s ability to participate effectively in proceedings. This information can be used by advocates to present a compelling argument when making an application for an intermediary.
We do not recommend in every case. Our intermediaries are salaried employees and have no incentive to recommend or otherwise. Referrals are typically made following a recommendation from a psychologist or first-hand experience of communication difficulties with a client from a solicitor. This means there is a high probability that the referred individual does indeed have a communication difficulty which will impact their participation in proceedings.
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.
It is for the Judge to take a view regarding how rare they consider the content of the case and the needs of the court user to be, after considering the intermediary report, other professional reports (if available) and the application for an intermediary.
The Judge must give careful consideration, not merely to the circumstances of the individual but also to the facts and issues in the case.
This is an important consideration. Assessing intermediaries do not have access to information about the case when conducting assessments, and therefore it is for the judge to make a holistic decision regarding the support needed in the case (for example, if there is complex medical evidence which the individual will require support to follow).
The intermediary report will clearly set out areas of communication difficulty and the likely impact of these difficulties in legal proceedings. The judge can use this information to decide at what stages of proceedings, a court user will require intermediary assistance.
It is 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 2-3 weeks and reports are completed within 5 working days. Urgent assessments can typically be accommodated much sooner). This means that, if case content changes and an intermediary is required at short notice, they can be allocated as soon as possible.
In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the court user can effectively participate in the trial.
Communicourt reports set out a full list of recommendations which will support a court user’s participation in legal proceedings. However, if an intermediary is recommended, it is because the assessing intermediary is of the view that, even with these recommendations in place, the court user will not be able to participate effectively without intermediary assistance.
If the judge takes the view that intermediary assistance is not required throughout proceedings, the additional recommendations can still be applied to support your client’s participation to some extent.
The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary [for example a psychologist] is not necessarily a deciding factor.
Although not determinative, the views of experts should, of course, contribute to the decision-making process for the judge.
If no intermediary is available, cases should almost never be adjourned. Instead, adaptations should be implemented to support participation in the absence of an intermediary.
As above, we recommend that intermediary assessments are requested at the earliest possible stage, to allow intermediaries to be assigned promptly to cases. Communicourt assessment wait times are approximately 2-3 weeks and reports are completed within 5 working days. Urgent assessments can typically be accommodated more quickly, in some cases within a few working days.
Please let us know your hearing dates and we will be able to give you a transparent view of whether or not we are likely to be able to provide an intermediary for the hearings. We have over 100 full time intermediaries working across England and Wales, so this is unlikely to be an issue. Subject to the demands on the service, we are often able to accommodate urgent requests.
If you have any questions regarding intermediary assistance for your client in relation to this judgment, please contact admin@communicourt.co.uk or telephone us on 0121 663 0931 (Mon-Fri, 9am-4.45pm).
This website uses cookies so that we can provide you with the best user experience possible. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful.
Strictly Necessary Cookies
Strictly Necessary Cookie should be enabled at all times so that we can save your preferences for cookie settings.
If you disable this cookie, we will not be able to save your preferences. This means that every time you visit this website you will need to enable or disable cookies again.
3rd Party Cookies
This website uses Google Analytics to collect anonymous information such as the number of visitors to the site, and the most popular pages.
Keeping this cookie enabled helps us to improve our website.
Please enable Strictly Necessary Cookies first so that we can save your preferences!
![“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)
