Max Konarek is Partner and Joint Head of the Family and Childcare Department at GT Stewart Solicitors. He recently represented a parent in care proceedings involving allegations of non-accidental head injuries to a child by one, or both, parents. Max took the case over late in the proceedings after his client changed solicitors. He quickly realised his client had communication needs and didn’t understand what was happening in court.

He spoke to us about this complex case and the stark difference intermediary support made for his client. You can read more about the case here. 

What made you think your client might need support from an intermediary?

My client came to me very late on in the proceedings. The fact-finding hearing was complete, and findings were made by the court that my client had caused the injuries to the child concerned. The case was in the welfare stage, leading into the Issues Resolutions Hearing. My client had not been happy with the representation they had previously had, and they were not happy with the way in which the fact-finding hearing had been conducted.

During the first meetings with my client, a few “red flags” for me arose very quickly. As part of taking on any new client I always explore their educational background to look at what stage they had left school, whether they had any extra assistance at school, or special measures applied, and whether they can read/write. In this particular case, my client had left school early and was also neurodivergent.

In discussions with my client, passing reference was also made to a social worker making a referral for an Advocate to assist them. An Advocate’s role is to provide emotional and practical support to someone, the role is very different to an intermediary, who is a court communication specialist. However, I felt the fact that the social worker had felt it was necessary to make a referral for an Advocate to assist my client, was highly relevant to whether or not they needed an intermediary in the court proceedings.

When I received the papers, I also noticed that post-fact finding the Court had ordered a CUBAS parenting assessment. Whilst these types of assessments are not solely focused upon parents with additional needs (as PAMS assessments were), they are used for a parent whose care potentially demands greater insight, understanding and development.

This all led me to explore with my client what took place at the Fact-Finding hearing in particular. Having done so, even more concerns arose around what had transpired. I cannot provide details due to retaining confidentiality of the case, but I can say there was a stark contrast in how my client was treated in court compared to the other parent who did have the benefit of an intermediary.

When going through different aspects of the evidence in order to gauge my client’s understanding of the case, it became apparent very quickly that he did not understand. I decided to seek the opinions of other colleagues within my team. Alison Barar is a Case Worker and works directly with me on all of my cases. She met with my client and agreed we needed to make an urgent application for our client to be assessed by an intermediary.

Why do you think your client’s needs had not been highlighted before?

I don’t know why my client’s needs had been overlooked previously. I can only assume the previous legal representative did not have sufficient training or experience to identify the client’s needs.

What impact did that lack of communication support have on your client, and their case?

I think this can be looked at in two stages:

Pre-Fact Finding Hearing:

My client did not fully understand the evidence that was put against them. If they do not understand that, they cannot provide the instructions I need to properly fight a case like this. The attention to detail and ability to explore something that might appear to be irrelevant is often how these cases turn in your favour.

Anyone accused of causing a non-accidental injury will have to produce a statement for the Court. The statement allows the person accused to set out a chronology of events that have arisen, possible explanations, any relevant diagnosed and undiagnosed medical history. This can be a lengthy document produced with the assistance of a skilled family lawyer who is able to eke out the details, making the information as clear as possible for any expert and other professionals to read. I put together these documents as a result of a number of appointments with a client, and it often takes tens of hours to produce. When you have a client that has difficulties with communication or understanding then you have to deploy additional strategies to ensure that you can still produce the same quality evidence for a client.

During the Fact-Finding Hearing:

In court there are a number of different ways in which you will be arguing your client’s case and challenging the evidence. In particular, you rely on your client following the evidence that is coming out, understanding it, and where necessary providing you with instructions on points that may not have been clarified before.

Furthermore, when your client is giving evidence you must ensure they are giving the best possible evidence to the court. For example, when a client does not follow the question being asked of them or cannot follow the written evidence in the bundle that they are being taken to, then they are potentially not going to give the correct information, or their emotions may become heightened. The way in which they give evidence and what they say is all being assessed by the Judge in terms of their credibility, and therefore whether or not they have caused the harm alleged.

What outcomes do you hope your intervention will have?

I have to be very clear with my clients in situations like this that just because we have been successful in re-opening the findings made, it does not mean that the Court will find they have not caused the harm. It may well be that the evidence still points toward findings against them being made.

Some may question why we bother then if the outcome may be the same? The only answer I can give is to say that a person’s Article 6 Rights are absolute; it underpins the court system in which we rely upon to find justice in all cases. Ultimately, I want to know that I have done everything I can to ensure that my client’s case was fought as it should be, to make sure that the process was fair. Equally I want my client to feel that the case was fair for them and that they come away at the end of the case knowing they have done everything in their power to fight to have their child returned home, regardless of what the actual outcome is. That, in itself, is huge for a parent in these sorts of cases – the effects of still questioning whether they could have done more, or whether they felt the process was fair, can in itself have a significant impact on their emotional and mental wellbeing for the rest of their life.

Do you think legal professionals have the time and resource to effectively identify when a client has communication needs?

As a legal representative, it is one of your many roles assisting a client in family proceedings to identify, where necessary, that a client requires additional help. If you do not do so, how can you monitor the court process and argue in Court or raise concerns where necessary, saying that the court process is not Article 6 compliant (Right to a Fair Trial)?

It is a core principle of the Solicitors Regulation Authority (SRA) Code of Conduct to “maintain your competence to carry out your role and keep your professional knowledge and skills up to date”. Therefore, the onus is on you as a legal representative, and any team or department supervisor, to take a view as to whether or not you have the skills to represent a particular client.

I readily accept that time, professional experience, remote conferences, apparent disengagement of client, lack of disclosure by client, can all play a factor in a client’s needs being missed – these however are not excuses. Steps have to be taken to mitigate such issues. Ultimately as a legal representative it is your job to identify a possible need, set out to the client in a way they will understand what advice you have to address that need, and then act upon instructions given to you.

You will get clients from time to time that do not accept your advice and will not engage in an expert assessment or accept the need to engage in an intermediary assessment. That is their right and their choice. When that arises, I explain the consequences of such a decision in clear and simple terms. In the context of an intermediary, I will also re-visit with my client the need for an intermediary at different stages, if it has been refused previously by the client. Often when you have a vulnerable client, there are external factors that can impact upon the instructions they provide to you at any given time.

Do skills in this area vary between legal professionals?

Skills do vary – some legal professionals are naturally very good with clients that have additional needs, that are neurodiverse and / or those that require an intermediary; other legal professionals aren’t. The case highlighted at the start of this interview is a prime example of that – I took the case over where my client had involvement with 3 legal professionals (lawyer and two counsel) that represented the client over a period of 1 year or so, all of whom did not pick up on the fact that an intermediary was necessary or at the very least should be explored further.

Do you have any thoughts on how improvement might be achieved?

I think there is always room for improvement for anyone, whether they are training to come into the legal sector, or have 30 years post-qualification experience.

I think this ties in for example with organisations like the Family Law Advice for Neurodivergent Community (FLANC). It is about time an organisation like FLANC exists and I am a staunch advocate and supporter of what they are doing. One of FLANC’s core beliefs is that there should be mandatory training for family justice professionals around neurodiversity.

Whilst not all of my clients that require an intermediary are neurodivergent, many are. Such training proposed could be widened to cover all types of people that require the assistance of an intermediary. There is always new research, new training, new methods of approaching and assisting a client. It is a scenario where in my view there should be mandatory training and continuous professional development requirements for all family justice professionals to help clients with learning disabilities, learning needs and those who are neurodivergent. It will ensure that the family courts are accessible to all.

There is often a perception that intermediary applications (and other similar steps), slow proceedings down. Do you have a view on this?

I fundamentally disagree with this view.

When the potential need for an intermediary arises in a case, often the steps taken are to make a Part 25 application for a psychological or psychiatric assessment; and then in turn apply for an intermediary assessment. At the stage of these applications being made, very simple steps can be taken by the advocates involved to ensure directions are made by the Court which will save time. For example, Part 25 applications for the initial expert application can be done on paper if needed. Follow on directions can be made for an intermediary assessment to be undertaken, report completed and intermediary attending future hearings – but this only follows if there is a positive recommendation by the expert.

Each and every party that is assisted by an intermediary will have different needs – I have had cases where a client could only actively engage in a court hearing for 2-3 hours in a day (meaning the 5 day final hearing was 10 days as a result). I have had others where regular breaks are needed; I have had clients where it has mainly been the language used in court which needed to be monitored. Having an intermediary appointed when one is necessary is a fundamental Article 6 Right for the party involved. If the needs of that party mean that the court case must be slower as a result of their needs, then that cannot, and should not be an issue in my view.

I have outlined above the steps I took in seeking to re-open the fact finding – whilst my application was plainly an unpopular one to make, particularly in the context of delay, had I not, or had the Court not granted the application then there was a real risk that the Court makes an unsafe decision at the end of the case – potentially adoption. If an intermediary had been appointed previously, whilst there may have been a longer fact finding hearing (by a few days perhaps), there would not have been the months of delay that has now arisen as a result of the re-opening application having been made.

Do you have a view on the recent Lieven judgment, which adopts Criminal guidance around intermediary use?

The Lieven Judgment follows on from a series of different cases, each one dealing with particular issues around intermediaries and Article 6 compliance (the appellant in Re N was my client, as was the applicant in A Local  Authority v Mother & Ors)

Re M [2012] EWCA Civ 1905
Re N [2019] EWCA Civ 1997
A Local Authority v Mother & Ors [2022] EWHC 2793 (Fam)
S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8

The issue can be separated into two categories: (i) The needs of a party were identified or suspected but appropriate steps were not taken to ensure Article 6 compliance; (ii) Where the need for an intermediary was not identified in the original cognitive assessment and the extent of the party’s difficulties is only identified following the subsequent assessment carried out by the new psychologist.

Inevitably this judgment will have some impact on how intermediaries are appointed in family proceedings. Admittedly upon first reading this judgment I was concerned about the trajectory of where intermediary appointments could go. The Lieven judgment does not prevent a court ordering that an intermediary should be appointed – the crucial change there needs to be “compelling” reasons to do so. What is compelling in one case may not be compelling in another. I think as a legal representative you are going to have to really consider the reasons for seeking an intermediary, making sure your argument is succinct and supported by clear evidence.

The judgment referred to an expert recommendation, not necessarily being the deciding factor in whether an intermediary is necessary. In a way I agree with this point – I have for example had a case where an intermediary was not recommended by the psychologist instructed to do a cognitive assessment, but as a result of my own experience being with my client in numerous meetings and different settings. It was obvious to me that an intermediary was necessary, I therefore set out clearly in the application the reasoning for this and the Court ultimately accepted those observations. The difference having an intermediary made thereafter in that case was stark.

Equally, I have had other cases where the Court is not willing to direct an intermediary assessment without there having been an expert psychologist or psychiatrist instructed first to provide an opinion. Ultimately, it will come down to the specific circumstances of the case. As a solicitor representing clients that may need an intermediary, I think you have to look at the wider picture, taking evidence of those needs from different areas and where one is necessary in your view, ensuring that you advocate clearly and thoroughly to the court for one to be appointed.

However, what does concern me is the suggestion of adopting the criminal guidance into family proceedings. I do not believe that the family courts can or should simply adopt the judgment as the two settings are very different from one and other – what works for the criminal court does not necessarily work for the family court. For example, the language used in the family courts is often complex but well understood by the professionals involved. Conversely in the criminal court the language used is tempered in order to ensure that the Jury/lay observer can follow the proceedings without issue. An intermediary therefore appointed in family proceedings will be able to assist in understanding what is being said as the case proceeds, making sure the person they are helping can follow what is being said.

Whilst an intermediary is appointed in the criminal courts to assist the defendant in giving evidence, there is often not provision to ensure that the vulnerable party has understood the evidence against them. This approach would probably concern me the most; it is absolutely vital that my clients understand fully the case against them so that they can provide instructions – it is their basic Article 6 Right.

The Lieven Judgment also noted that there was no clear guidance in the Family Procedure Rules of Practice Directions regarding the appointment of an intermediary. Rather than trying to take a “one size fits all” approach, I would strongly advocate for the Family Courts to have its own guidance; guidance that has been formulated in active consultation with legal professionals, legal professional bodies, and of course intermediaries and the companies that they work for.

Max is a specialist Child Protection Solicitor and is accredited on the Law Society’s Children Panel. He represents clients based in the UK and Worldwide.

His experience extends to cases that include the death of a child, shaken baby allegations, non-accidental injuries, sexual abuse, Fabricated or Induced Illness (FII) in all levels of Court from the County Court to the High Court, Court of Appeal and Supreme Court.

Max has a particular interest in representing clients that are neurodiverse, vulnerable adults with learning difficulties or disabilities (including those where the Official Solicitor has become involved), foreign nationals, clients from the Romany Gypsy and Travelling communities.

View Max’s full profile here

Read more

• Communicourt digest: Lieven judgment
• Communicourt digest: Williams judgment
• Blog: The Invisible Intermediary

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.

For further information and queries, please contact events@communicourt.co.uk

We are delighted to be sponsoring this year’s Legal Aid Lawyer of the Year Awards, otherwise known as the LALYs.

Communicourt is sponsoring the ‘Disability Rights’ category and nominations are now open.

This will be the 22^nd Legal Aid Lawyer of the Year awards and nominations will close on 22 April. This is the only annual event solely dedicated to celebrating the work of grassroots social justice lawyers.

This year sees the addition of new award categories, new sponsors, and a distinctive new logo for this well-supported event. Winners in the 12 award categories will be announced at a ceremony in central London on 5 July in front of a 500-plus strong audience.

Communicourt Managing Director Billy Scrimshire said: “I am thrilled that Communicourt is a category sponsor for such an amazing event. I can think of no better way to show our support for the fantastic work of legal aid practitioners, and I am really looking forward to seeing the submissions.”

The categories are:

1. Legal Aid Newcomer (sponsor – Friends of LALY24)
2. Legal Aid Support Staffer/Support Team (sponsor – Accesspoint)
3. Housing Law (sponsor – Leigh Day)
4. Family Legal Aid, including Children’s Rights (sponsor – Resolution)
5. Criminal Defence (sponsor – One Pump Court)
6. Legal Aid Barrister (sponsor – The Bar Council)
7. Legal Aid Firm/Not-for-Profit Agency (sponsor – The Law Society)
8. Disability Rights (sponsor – Communicourt)
9. Regional Firm/Not-for-Profit Agency (sponsor – The Legal Education Foundation)
10. Social Welfare Law (sponsor – Doughty Street Chambers)
11. Public Law (sponsor – DG Legal)
12. Outstanding Achievement (sponsor – Matrix Chambers)

To find out how to make a nomination, please visit the LALY website.

Communicourt is the sponsor for the Criminal Law category in this year’s Yorkshire Legal Awards.  

The Awards is celebrating its 25th anniversary this year and the awards ceremony will be held in Leeds in October. Nominations have now opened for the awards and the deadline for submissions is 19 July.  

The Yorkshire Legal Awards brings together the region’s legal community to recognise and celebrate its many achievements. 

This is the first time Communicourt has been a sponsor for this award.

Managing Director Billy Scrimshire said: “Our court intermediaries work with many legal professionals in and around Yorkshire, and we see first hand how vital their work is. It is a pleasure to be able to sponsor a category at these awards.” 

More information about the rules of entry for these awards is available on the Yorkshire Legal Awards 2024 website.  

In some instances, sources cited in this article refer to women. However, menopause is a condition which impacts people of all genders. The issues explored in this article may also impact transgender people, non-binary people and others, who are an important part of this conversation.

At Communicourt, we are celebrating World Menopause Day and opening up the conversation about menopause in the workplace. As part of The RCI Group, we have taken the Menopause Workplace Pledge and hosted an awareness session for colleagues, by Emma Persand of Working with the Menopause, about the impact of menopause upon our working lives. The RCI Group is also introducing a new group-wide menopause policy to support people at work.

Rarely discussed in our professional lives, menopause is a significant life transition and physical change which will affect 51% of the UK population. The recently published House of Commons Committee Report ‘Menopause and the workplace’ has collated a wealth of information which illustrates the importance of more open discussion about the topic:

• 3 in 5 women experiencing menopause were negatively affected at work (CIPD, 2019).
• 900,000 women in the UK had left their jobs because of symptoms relating to menopause (BUPA, 2021).
• Less than a third of people experiencing menopause told anyone at work, citing privacy and the reactions of others as key reasons for this (Women and Equalities Committee, 2022).
• Over 25% of people who did not request adjustments for menopausal symptoms did not do so because they were “worried about the reaction” (Women and Equalities Committee, 2022).
• 14 million working days per year in the UK are lost due to menopause and related symptoms (Health and Her, 2021).

These statistics paint a clear picture of the impact which lack of understanding and adaptations around menopause has on individuals, workplaces and the economy as a whole. Evidently this is a health issue which can have a marked impact on people’s ability to work without adaptations, yet which few people feel comfortable raising in a workplace setting. As such, workplaces are losing valuable, experienced staff members. These are often people who offer years of expertise and perform vital functions such as mentor and role model to more junior employees.

Destigmatising hormonal change

Bringing conversations and understanding about the menopause into the workplace is clearly an important task. When workplace cultures understand the potential impacts of menopause (and become aware of the adjustments which are likely to support menopausal employees), organisations can start to retain more senior staff.

Open dialogue about menopause at work also encourages important conversations about the effects of other hormonal changes which may affect employees, including pregnancy and the use of hormones for processes like IVF or gender confirmation. Other health conditions which impact women, transmen and non-binary people, such as endometriosis, can also become part of this wider conversation about better support and inclusion.

Menopause in the workplace: The facts

When does menopause happen?

• Menopause typically occurs between 45 and 55 years of age.
• In 1% of cases, premature menopause takes place before the age of 40.
• Perimenopause takes place before periods stop (menopause). During this time, menopausal symptoms can occur, lasting for months or (in some cases) years.
• After menopause (the total cessation of periods) menopausal symptoms last for around four years after periods stop. In some cases, the symptoms last longer.

What are the most common symptoms of menopause?

• Hot flushes and night sweats.
• Disturbed sleep and sleep difficulties.
• Vaginal discomfort.
• Mood changes, including increased anxiety and low mood.
• Memory and concentration difficulties.
• Headaches.
• Heart palpitations.
• Joint stiffness, aches and pains.
• Reduced muscle mass.
• Recurrent urinary tract infections (UTIs).
• Reduced libido.
• Bone strength (increased risk of osteoporosis).
• Increased vulnerability to heart disease and stroke.

How can menopausal symptoms impact people at work?

• 65% of survey respondents reported problems with concentration.
• 58% said they felt more stressed.
• 52% reported feeling less patient when working with clients and colleagues.
• 30% reported taking sick leave due to menopausal symptoms.
• Of this 30%, only 25% were able to tell their manager their absence was due to menopausal symptoms (Women and Equalities Committee, 2022).

5 ways workplaces can support menopausal employees

1. Normalise conversations about menopause and hormonal changes in the workplace by participating in events like Menopause Awareness Day, setting up a regular employee support group and sharing information.
2. Allow flexibility around the working day. Some menopausal people may have sleep difficulties which may impact their work in the morning. Others may feel more physically comfortable working from home.
3. Provide desk fans or adapt office seating plans to make individuals experiencing hot flushes more comfortable.
4. Allow more frequent comfort breaks.
5. Allow alterations to workplace uniforms to increase comfort.

References

BUPA (2021), Written evidence from Bupa [MEW0046], accessed October 2022

CIPD, “Majority of working women experiencing the menopause say it has a negative impact on them at work | CIPD”, accessed October 2022

Health & Her Ltd (2021) A fact-based focus on Perimenopause and Menopause issues faced by women [MEW0054], accessed October 2022

Women and Equalities Committee (2022) Fourth Special Report of Session 2021–22, Menopause and the workplace survey results, HC 1157.

One of our intermediaries Holly talks about how to avoid the ‘do you understand?’ trap.

If I could wave my magical intermediary fidget aid and make one small change to legal proceedings, I would banish the question, “Do you understand?” from existence. Almost impossible to avoid, “Do you understand?” (and its close cousin, “Does that make sense?”) are very widely used in legal proceedings (particularly conferences). Even legal professionals who are notably adept in working with individuals who have communication difficulties frequently fall into the “Do you understand?” trap.

The problem with questions of this nature is two-fold:

1. The service user may just say “yes”. Many of us would struggle to respond “no”, if asked this question by a Crown Court judge during our oral evidence, while feeling flustered and overloaded in front of a full courtroom. This issue can be compounded when a person has a communication difficulty. People with communication difficulties are often skilled at masking their needs. Many will have done so throughout their educations and adult lives. There are many reasons why an individual would erroneously respond “yes”, when asked whether they understand. They may:
   
   • Feel embarrassed about not understanding.
   • Feel overwhelmed and simply want a situation to end.
   • Feel uncomfortable seeking support from unfamiliar professionals.
   • Have an expressive difficulty which makes it challenging to provide a more nuanced response.
     
2. The service user may think they understand. An individual may also state that they understand because they erroneously believe that they do. Misunderstandings frequently arise between individuals who do not have a communication need, resulting in two people having very different understandings of one piece of information. When an individual does have a communication difficulty (for example, difficulty maintaining attention, processing verbal information or understanding figurative language) the opportunities for misunderstanding can increase. A person with a communication difficulty may have entirely misunderstood information or partially misunderstood, yet still respond “yes” when asked whether they understand.

As an intermediary, I have endless examples of situations in which a service user has said they understand but, when their understanding was directly checked, revealed that they had not.

Case study: I assisted a service user with a mild learning disability. They presented with strong expressive communication skills, using a wide range of legal terminology correctly while giving instructions. The barrister mentioned to me that they were surprised the service user had been allocated an intermediary, based on their presentation. The barrister spoke rapidly to his client, using very low frequency vocabulary (eg, “Otiose”). It was necessary for me to check the service user’s understanding while the barrister was not present, then provide simplification. The service user explained to me that they did not feel comfortable speaking to the barrister.   In conference after the hearing, the barrister stated, “Well you understood all that, didn’t you? You know what VIG work is”. The service user nodded. I then checked their understanding by asking a direct comprehension question (“What is VIG work?”). They responded, “I don’t actually know”. I therefore provided a simple explanation of the term, which they were able to recap in their own words when understanding was re-checked.

How to check understanding

Direct, specific comprehension questions are one of the most effective methods of checking understanding and retention of information. For example, after an explanation of a Special Guardianship Order, ask: “What is a Special Guardianship Order?”, rather than, “Do you understand the SGO?”. This ensures the individual expresses exactly what they have understood, so that it can be checked and (where necessary) corrected.

Although this process is simple and often highly effective, in some cases it can be challenging to implement if:

The service user doesn’t engage with comprehension checking

Some individuals may feel patronised or put on the spot by this strategy. In these cases, there are lots of measures that can be implemented to assist, including:

• Explaining the rationale for the strategy (e.g., “It’s really important that your legal team gives you all the information you need. This is to check we have explained everything properly”)
• Adopting a more informal, conversational approach after building rapport (e.g., “What was all that about, then?”)
• Asking their opinion to open up the conversation in order to assess understanding (e.g., “What did you think about X?”)
• Feigning ignorance, to allow the service user to ‘fill in the blanks’ (e.g., “What did the judge say about X again? I missed it”)

The service user has expressive difficulties

If an individual has difficulty putting their understanding into words, it can be challenging to explore their true understanding using comprehension checking questions alone. It may assist to:

• Use more specific prompt questions (e.g., “What did the doctor say about X?”, “What does that mean?”, “Why is that important?”)
• Give multiple options, including a distractor item (e.g., “Does consecutive mean: One after the other, at the same time, or no prison time?”)
• This approach can be visually supported if the service user has a reduced auditory working memory capacity (e.g., using pictorial multiple choice questions)
• Use other visual aids to support their expression (e.g., if discussing court roles, use a plan of a courtroom to allow them to point to different areas and professionals)

Never assume understanding

Intermediaries and legal professionals should never assume “yes” means that an individual with a communication need has understood. There are also other presentations which we should not assume demonstrate understanding. These include:

• Nodding during explanations.
• Making sounds of engagement during explanations, (e.g., “Mhmm”).
• Echoing parts of the explanation (e.g., repeating the final clause, “Yeah, like the social worker said”).

Checking understanding more effectively can be a longer process but helps ensure that individuals with communication needs have the information required to fully understand proceedings. This can help them to make better informed decisions, give clearer instructions and feel more confident engaging with proceedings (among many other advantages).

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.

Rhianna explores how trauma can affect communication skills.

“The physical trauma – or more precisely the memory of the trauma – acts like a foreign body which long after its entry must continue to be regarded as an agent that is still at work”. – Freud and Breuer

Trauma is a subjective experience which overwhelms a person’s ability to cope. It may involve an individual feeling as though there is a direct threat to their life, sanity, or safety. In an effort to survive, preserve a coherent sense of self, and process the traumatic experience, the brain seeks out various coping mechanisms.

The brain can make mistakes – and these coping mechanisms may leave enduring consequences on an individual’s ability to integrate their emotional experiences and process information. The shadow left by a traumatic event may affect how an individual presents, behaves, communicates, and relates to others.

Research into the understanding of trauma is developing. Increasingly, professionals and practitioners across many fields are shifting towards a trauma-based perspective when dealing with those who live with Post Traumatic Stress Disorder (PTSD). However, this has not always been the case. PTSD has only existed as a diagnosis since 1980. Prior to this, veterans and victims of abuse who were suffering, with what we now call PTSD, would be routinely misdiagnosed with a plethora of conditions, including alcoholism, substance abuse, depression, mood disorder, schizophrenia, or neuroses.

Whilst people diagnosed with PTSD may experience any of the aforementioned conditions (plus many, many more), trauma lies at the heart of the issue. The roots of trauma run deeply, the consequences and effects branch wide.

Fight, Flight, Freeze, Collapse

Our nervous system is ancient. Like all species, humans have evolved self-protective mechanisms to help us survive imminent danger. This system evolved to mobilise us away from very real threats such as, a predator, a landslide, or a fire. The complexity of modernity means, however, that the dangers we face are not always as concrete as they were historically. We may misinterpret safe situations, seeing danger where none exists. Before our rational brain can process and de-escalate the situation, our central nervous system has already sprinted into action.

Trauma survivors are often hypervigilant to danger. They may be far more likely to misinterpret situations, to feel like danger is imminent and inescapable, when in fact they are perfectly safe. Individuals with PTSD are effectively on hyperalert. Their fight or flight response has been hijacked, meaning that this chain reaction can be quickly triggered.

Once this chain reaction has been set off, the body is running on pure instinct. This is an extremely physical response. The amygdala (the stress centre of the brain) fires stress hormones called cortisol and adrenaline through the body. The pupils dilate, and we experience the phenomenon of tunnel vision. Blood flows to the major muscle groups such as the thighs, and arms, preparing us to run from or fight off an attack. The breath and pulse quicken, our blood pressure increases, and we are elevated to a heightened state of tension. The intensity of this physical response can have serious consequences for our ability to communicate, and we may struggle to articulate our feelings, to decipher meaning and to express ourselves coherently.

Courtroom environments can be extremely overwhelming, in particular for people with PTSD. The atmosphere is heightened and stressful, the pressure on the individual is intense, and the consequences are often life changing. Breaks from the court environment can interrupt the mounting anxiety trauma survivors may be feeling. Intermediaries can monitor the emotional presentation of service users and alert the court if it deteriorates. Taking some time and space away from the court environment can reset an individual’s anxiety levels and allow them to de-escalate their panic response.

The intermediary can assist further with this by implementing grounding exercises. These exercises may include guided deep breathing with a particular focus on the outbreath, as this stimulates an individual’s parasympathetic nervous system and slows their heart rate. The intermediary may also guide the service user through exercises to assist them to reconnect with their senses, for example, by asking them to name 5 things they can see, 4 things they can hear, 3 things they can feel, 2 things they can smell and 1 thing they can taste.

Feeling a sense of presence and connection with the earth can bring us back to the current moment, and the intermediary could invite the service user to feel the full weight of their body against the floor or chair. The path of the vagus nerve carries messages of panic through the throat, chest, and abdomen. Grounding exercises can help to direct an individual’s focus away from this system. Focusing attention on the hands, which lie outside of the path of the vagus nerve, can create physical sensations which can counterbalance the feeling of being out of control. The intermediary could introduce the use of fidget objects or offer the service user some paper so that they can draw, write, or shred. The intermediary may guide the service user through some gentle movement, such as tapping on the pressure points, or simple stretches. These exercises can help create space and movement in the mind, body and voice, which acts as an antidote to the frozen, paralysing fear we experience when living in a traumatic moment.

Speaking out and sitting down

As part of our instinctive panic response, a key area of our brain which is used for communication – known as the Broca’s area – completely shuts down. The Broca’s area is a key speech centre, and if this part of the brain stops functioning, you are effectively unable to articulate your feelings. This poses enormous challenges to individuals who are required to give evidence in court.

With an impaired Broca’s area, individuals in court will struggle to alert professionals when miscommunications occur. They may have difficulty recognising and advocating for breaks when they are needed. They may struggle to decipher meaning when presented with information which uses low frequency vocabulary (for example, the word, ‘instigated’ may be harder to process and understand than the word, ‘started’). They may also struggle to comprehend complex sentence structures, such as tag questions, or questions which contain multiple parts. Of course, all of these issues are only magnified if the individual already experiences barriers to their communication in their daily life. Any pre-existing communication difficulties will be exacerbated, at a time when effective communication could not be of greater importance.

When asked to give evidence in court, individuals who have PTSD may become so overwhelmed that they can barely speak. Their nervous system may be hijacked into a state of panic, rendering them unable to clearly articulate what happened to them. Their evidence may be fragmented, chaotic, confusing, or incoherent. Alternatively, they may try and recount the events of what happened to them in a way that prevents them from becoming triggered. This may result in their responses appearing evasive, minimal, or unreliable.

An integral part of the intermediary role is assessing the communicative ability of the individual service user and intervening to ensure that the questions asked of them in evidence are appropriate for their communication profile. At the assessment stage, the specific difficulties each service user faces will have been identified, and recommendations for effective communication will be set out in the intermediary report. However, the service user’s ability to process and understand language may fluctuate, and this will need to be constantly monitored by the intermediary. If a service user enters fight or flight mode, they may become far less able to process question types which ordinarily may not pose any issues.

The intermediary can alert the court’s attention to complex question types and offer suggestions for simplifications. Ensuring that language is kept extremely simple and that questions are short and easy to understand, will assist the service user to provide their best possible evidence to the court. If the evidence given by the service user lacks sufficient detail, the intermediary can also recommend the use of simple, follow up questions, such as, “Where did you go next?”, or, “What happened after that?”. If the service user is unable to understand or process verbally presented information, the intermediary can intervene and offer visual explanations, using simple visual aids. These strategies are not only effective when a service user is giving evidence, as the intermediary can continue to use visual aids and give verbal simplifications throughout proceedings to support comprehension.

Our nervous system is a powerful thing, and the intensity and regularity of the fight or flight response can have lasting consequences for how trauma survivors understand, process, and retain information. Over a prolonged period of time, constantly elevated stress hormones can have serious impacts on the memory of traumatised individuals and their ability to maintain concentration and attention.

The court environment was not designed with PTSD survivors in mind. In court, there is often large volumes of complex verbally presented information, which contains unfamiliar or court-specific language, such as ‘indictment’, or ‘threshold’. This can be extremely fatiguing for individuals with trauma-related communication difficulties to process. In addition to this, the court environment has an intensity which requires focused attention, and due to time pressures, breaks are not always factored in.

This is where intermediaries can assist individuals with PTSD to access and participate fairly in the justice system. Having a timetable or checklist of what is coming up within the court day can manage expectations and assist the service user to maintain their attention. Another key strategy which intermediaries may implement to support the retention and concentration of individuals with PTSD is enabling regular breaks. The intermediary can closely monitor the presentation of the service user, and if it is clear that the fight or flight response has overwhelmed their ability to participate fairly, then the intermediary can advocate for breaks and alert the court when they will be necessary. In these breaks, salient points from proceedings can be repeated and recapped to assist retention. Time should also be carved out within the break for the service user to have a complete rest from processing, which will then enable them to concentrate more effectively when they return.

Flashbacks

A common experience of trauma survivors is that of visceral flashbacks. These flashbacks are intense physiological experiences and do not operate in the same way that typical memory does. When an individual with PTSD is presented with images, sounds or thoughts which relate to a traumatic event, the amygdala lights up in alarm. Physiologically, their body reacts as though the traumatic event is ongoing, as though the danger is immediate and inescapable, even if their brain is simultaneously aware that there is no tangible risk of harm.

When a flashback occurs, the left hemisphere of the brain deactivates. This can have disastrous consequences for an individual’s ability to communicate coherently. Without the left side of the brain functioning, the individual may find themselves unable to name and compare things and understand how one thing relates to another. They may be unable to organize and sequence events, and whist being consumed with overwhelming emotions, individuals may have extreme word-finding difficulties. This can leave them feeling incapable of communicating their subjective experiences to others.

The court environment is rife with stimuli that could trigger a flashback or adverse reaction. When attending court, individuals may be required to publicly relive traumatic events. Some may be faced with seeing the perpetrator of their trauma. Individuals may undergo cross examination which may feel invasive, personal, or triggering. The subjects that are discussed in proceedings are often highly sensitive, and even if not directly related to their trauma, could nonetheless stir up distressing memories and feelings. In addition to this, the unique formality of the court environment, the stakes and pressure of the situation, as well as the anticipation and anxiety surrounding court attendance, could all act as further catalysts.

As intermediaries, we can implement various strategies to minimise the risk of an individual experiencing a flashback. If the service user is likely to be triggered by seeing a particular individual in a court setting, intermediaries can recommend the use of special measures, such as screens, to shield the service user from being visually confronted with the source of their trauma. If the court building itself could be a trigger, we could implement a familiarisation visit, to allow the service user to acclimatise to the environment in which the proceedings will be taking place. If this does not alleviate the service user’s anxiety, we could recommend that the service user attend remotely from another room in the court, or even a neutral building, such as a solicitor’s office.

Whilst attending court remotely certainly has its own complications, for some service users it can be a far less anxiety inducing experience and enable them to fully participate in their proceedings. Some individuals may find authority figures intimidating and could feel triggered by the hierarchical structure of the court environment. In some cases, a service user’s anxiety can be alleviated if certain court specific formalities and traditions are forgone. For example, it may be helpful to refer to traumatised individuals by their first name, or to allow them the opportunity to meet the advocates and judge prior to the court hearing. Some traumatised individuals may have a comforting object, or a person who provides emotional support who they may wish to accompany them to court. The presence of a reassuring object or individual in such an overwhelming environment may help to create a feeling of familiarity and safety.

Rapport and repair

Trauma is a rupture which can drastically alter how we view ourselves and interact with others. Those who have been traumatised may have great difficulty trusting new people. If their trauma was enabled by an abuse of power, they may find it particularly hard to engage with professionals and authority figures. It is for that reason that building a rapport is so fundamental to the intermediary role when working with trauma survivors. This rapport is the foundation on which all other assistance provided by intermediaries is layered. If the service user feels comfortable and relaxed working with the intermediary, they are more likely to express their lack of understanding or their need for a break. They may engage better with simplifications and explanations provided in court. In addition to this, there may be an increased likelihood of the intermediary being able to effectively assist with managing any emotional dysregulation.

Humans are innately social beings. When we feel under threat, we instinctually turn towards others to seek reassurance or call for help. If our distress is recognised and reassurance is given, this can go a long way to avoiding the stress response escalating to a fight, flight, freeze or collapse response. It may sound simple but acknowledging an individual’s emotions can be an extremely useful tool for de-escalation. Simple mirroring statements, such as, “I see you are very upset”, “I know what Mr X said made you very angry”, or “I understand that you feel very anxious about tomorrow”, carry a reassuring message: that the service user’s subjective experience is heard, understood, seen, and acknowledged. Having an intermediary in court can provide a soothing and steadying presence for those who suffer from PTSD. Whilst an intermediary is impartial, our purpose at court is specifically to assist the service user. For the service user, knowing that there is someone there who will be attentive to their communicative needs, and provide support when necessary, can be hugely beneficial in managing emotional dysregulation over the course of proceedings.

Trauma is complex and subjective. The ripples that it creates are far reaching and unique from individual to individual. With appropriate therapeutic intervention, traumatic experiences can be re-integrated and processed by the ever learning and adaptable brain. Left unresolved, however, trauma can permeate all aspects of how one interacts with the world. Individuals with PTSD who are required to attend court can feel as though they are being left exposed, vulnerable and at risk of re-traumatisation, if their experience is not adapted to meet their unique needs. Intermediary support can enable individuals who carry the complex scars of a traumatic past to participate fairly in a justice system which may often shine a light directly onto their wounds.

One of our Team Leaders, Rachel, reflects on what we have learned from sharing experiences and tips for managing stress.

The theme of this year’s Stress Awareness Month was ‘community’, which the Stress Management Society defines as more than just a group of people. It’s about having a sense of belonging and connection to others and feeling supported and accepted by them. This theme was chosen because a lack of support and lack of feeling of community can cause loneliness and isolation. This in turn lowers people’s wellbeing, impacts mental health, and can lead to mental illness. 

This month, some of our team members got together to reflect on stress awareness in more detail. We discussed what stress is, how it can affect the body, and aspects of the intermediary role that can contribute to feeling stressed. We shared our strategies and tips for dealing with stress and most importantly, how you create a keep a sense of community when you work on your own most days.

What we learned from Stress Awareness Month 2022

We approached the definition of stress using a visual aid, of course! The team found the bridge analogy to be handy when considering what stress is. When a bridge is carrying too much weight, it will eventually collapse. It is possible to see the warning signs before this happens, for example, the bridge would bow, buckle and creak, or you might see some cracks appear. When we apply this to ourselves, excessive demands and challenges placed on our bridges might create early warning signs. However, stress can creep up on some of us, resulting in an unexpected breakdown or health issues.

When reflecting on how stress impacts us individually, one thing that stood out in our discussions was that no individual is affected in the same way – parts of our job that one person found stressful for example, didn’t impact on another so much.

We thought about how this can make it hard to give advice to someone who is experiencing stress, because what might work for us might not work for them. It also makes it hard to identify stress in others.

The Stress Management Society highlighted three categories of change that might occur in someone when they are feeling stressed:

• Emotional, eg. moodiness, irritability, frustration, panic, anxiety, feeling overwhelmed etc
• Physical, eg. chest pain, rapid heartbeat, aches and pains, frequent colds, skin complaints etc
• Behavioural, eg. sleeping too little or too much, demotivated, isolating yourself etc

As a group, we decided how important it was to look out for these changes in ourselves and in others (friends, family and colleagues).

Community at Communicourt?

As intermediaries, we often spend a lot of time working alone. Even before the pandemic we were considered remote workers, travelling to courts and solicitors’ offices across the country without an office as a base. There are times when this can feel quite lonely, especially when you are on a particularly early or late train or are in a hotel away from home!

One of the main things we all took away from our group discussion is that we are never actually alone. We all share very similar experiences and stresses, and we all felt a level of comfort and connection in knowing that.

We reflected on whether we felt there was a sense of community in the workplace (despite us all living and working separately) and everybody agreed there was. We all believed that everybody does what they can to make others feel accepted, connected and like they belong, whether this was through informal Teams sessions, group chats, group challenges, team days, or just keeping in touch with our cohorts.

We also drew on the final aspect of the definition of community – feeling supported. We thought maintaining wellbeing lay more in the clear expectations we have of our roles and responsibilities. Having the opportunity to come together, if only virtually, for regular training and CPD sessions gives us an opportunity to share ideas and experiences. We have also been making a team effort to recognise and appreciate our colleagues more, and of course it is always lovely when we get appreciation from our service users.

Sharing some personal experiences of stress, and the strategies we used to overcome this, also gave us a feeling of being part of a community. We all left our group discussion knowing that it wasn’t ‘silly’ to feel stressed about something that could be perceived as being a small issue by others. We are feeling grateful for the opportunity to try a new strategy.

A big part of being an intermediary is about making recommendations for others, looking out for warning signs that might lead to emotional dysregulation, for example, and putting strategies in place to assist. Stress Awareness Month allowed us to focus on and consider ourselves, how stress may impact us and put some strategies in place for each other.

Our top tips for stress management:

• Talking to each other or the wider team
• Doing something creative in our spare time
• Colouring
• Exploring the different places we visit and stay in, e.g. taking a trip to an art gallery, museum or the zoo!
• Going for a walk or having a change of scenery, especially when working at home or when in the middle of a long piece of written work
• Laughing
• Breathing exercises