
A new Court of Appeal judgment (Re M (A Child: Intermediaries) [2025] EWCA Civ 440) restores the “test of necessity” as the only test which should be applied when considering intermediary applications in Family proceedings.
The new judgment removes additional tests, for example of “exceptionality”, which came into use over the past year following judgments provided by Mrs Justice Lieven and Mr Justice Williams, and practice guidance from the President of the Family Division.
We are very pleased that the mother in this case will now receive the intermediary assistance recommended as necessary by a psychologist and our assessor.
Over the past year, many solicitors and advocates have reported to us that it has been more challenging to gain approval for intermediary assistance in cases similar to RE: M, where communication needs are very likely to adversely impact participation and communication demands are high. This has been a source of considerable concern. We are extremely grateful to all who assisted in bringing this matter before the Court of Appeal, clarifying a number of important issues affecting vulnerable people’s access to the careful consideration and adjustments needed to ensure their effective participation.
The judgment: digested
Below you will find Communicourt’s digest of the Court of Appeal judgment, including some action points for both intermediaries and legal practitioners, and some areas for further reflection and discussion.
Please note: This post is intended to provide informal guidance and the views of Communicourt at the time of publication. If you have questions regarding the instruction of an intermediary in a specific case, the matter should always be discussed directly with the presiding judge. If you require further information regarding our intermediary service, please contact admin@communicourt.co.uk or telephone: 0121 663 0931.
Key points from the judgment | Discussion and action points | |
The test of necessity is the only test which should be applied when considering intermediary applications. Paragraph 7(2). “The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing.” Paragraph 51. “…as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.” This test is set out in Part 3A and Practice Direction 3AA of the Family Procedure Rules 2010 (FPRs), which are appended to the Court of Appeal judgment in full. Paragraph 7(2) continued: “Decisions are person-specific and task-specific, and the introduction of other tests upsets the balance struck by the FPR and may draw attention away from the circumstances of the individual case.” | We are grateful for clarity around the tests that should be applied when considering intermediary applications. The Court of Appeal judgment removes recent tests based on concepts such as rarity, exceptionality and a ‘spectrum of vulnerability’, noting: Paragraph 41. “There is […] no warrant for overlaying the test of necessity with concepts of rarity or exceptionality. Frequency is not a test, and nor is exceptionality. Similarly, the introduction of tests of “compelling reasons” […] beckon the court to short-circuit its consideration of the evidence in the individual case.” To support the Court to consider this crucial test of necessity, we have been piloting a new approach to intermediary reporting which provides more granular detail regarding: – communication needs, – whether any needs will mean the individual faces barriers to effective participation (and if so, at what specific stage). – the measures necessary to overcome any barriers. – additional measures the court can implement without intermediary assistance (where relevant). We anticipate rolling out this new approach organisation-wide over the coming months and seeking feedback from legal professionals to continually improve our reports. A note on when we recommend: Communicourt intermediaries do not recommend intermediary assistance in 28% of cases (2024-25 data), for example where an individual’s effective participation can be accommodated by the Court, or where a person’s needs are so significant that intermediary assistance will not ensure effective participation. We assess each individual’s communication profile in detail, alongside their response to possible communication strategies. We only recommend intermediary use in cases where: – We identify that a communication need will prevent an individual’s effective participation at one or more stages of proceedings. – We identify intermediary strategies which will successfully support the individual’s participation. – Intermediary assistance is necessary (e.g. other adaptations and measures will not be sufficient to support participation). | |
The necessity of intermediary assistance should be considered holistically, at all stages of proceedings. Paragraph 25.“…the primary focus of an intermediary appointment is to assist with communication within the courtroom, and in particular to enable the vulnerable person to give their best evidence. However, […] participation directions are not limited to these functions. The last of these provisions requires that, when considering whether the participation of any party or witness in the case is likely to be diminished by reason of vulnerability, the court should consider the ability of the party or witness to “a) understand the proceedings, and their role in them, when in court; b) put their views to the court; c) instruct their representative/s before, during and after the hearing; d) attend the hearing without significant distress.” Moreover, a party’s ‘participation in proceedings’ includes giving instructions and making written statements, a process that requires questions and answers. The witness statement of a witness called to give oral evidence will stand as their evidence in chief unless the court directs otherwise – FPR rule 22.6(2).” Regarding the extent of the intermediary role, at paragraphs 39 and 43, the Court of Appeal judgment states that Part 3A and PD3AA should be considered in full, highlighting that other recent judgments had erroneously focused on 3A.1 in isolation, resulting in the role of an intermediary being inaccurately reduced to largely assisting with evidence only (paragraphs 39 and 43). | The judgment contains a helpful reminder of the ‘building blocks’ of effective participation in Family proceedings. The Court of Appeal judgment makes clear that effective participation in Family proceedings extends beyond the giving of evidence, and includes a person’s ability to instruct their legal team, and understand proceedings. The potential role of an intermediary is also clarified in this judgment, which notes that this extends beyond facilitating an individual’s evidence (which is set out in the FPRs in their entirety). We read the Court of Appeal’s points regarding conferences outside of Court with interest. It is positive to see recognition that an individual’s statement is their ‘primary evidence’, the preparation of which requires them to understand and respond clearly to questions. We often recommend intermediary involvement in preliminary conferences due to the considerable communication demands placed upon Court users and the importance of effective participation at this stage (which can have a significant impact at later stages of proceedings). We agree that this measure will not be required in every case, and should involve careful consideration of information from solicitors, intermediaries and other sources. Decisions regarding adjustments at this stage (as at any stage), must be, as the Court of Appeal notes, “person-specific and task-specific”. For example, some Court users with communication needs may find communication somewhat easier in a private conference with a solicitor they have an established rapport with. However, familiarity and a more informal setting will not always be sufficient to address all barriers to participation: cases may hinge on complex timelines, consequential thinking, abstract legal concepts, lengthy and detailed written documents, all of which can pose significant challenges depending on the individual’s needs and difficulties. Discussing emotive matters in depth may be dysregulating (with additional impacts upon communication) and the individual’s presentation may fluctuate depending on a wide range of factors (sleep, medication, mental health etc). | |
Cognitive reports should be provided to the assessing intermediary. Paragraph 26. “If the court then approves an intermediary assessment, the cognitive report should be supplied to the assessor.” | Where cognitive (and other) reports are provided at, or ahead of, an intermediary assessment, we review this information and refer to it as part of our assessment and reporting practice. However, in the majority of cases, we do not currently receive reports at this stage. Our data shows that, to date in 2025, we received other professional reports as part of a referral in 21% of cases. Action point for Communicourt: We will explore how we can more proactively seek additional professional reports from solicitors as part of our referrals process, to ensure any available reports are reviewed by assessors at this stage. Action point for solicitors: Please share any relevant professional reports via our referral portal as soon as possible. This can be done when you make the initial referral (here’s a quick how to guide). If reports become available after the initial referral has been made, please email them to: admin@communicourt.co.uk, citing the case number and your client’s name. | |
Advocates simply cannot “do it all”. Paragraph 7. “The court is entitled to expect specialist family lawyers to have a good level of understanding of the needs of vulnerable individuals in proceedings and an ability to adapt their communication style. It will consider what can reasonably be expected of the advocates, and in particular of the vulnerable party’s advocate in the individual case, bearing in mind that professional continuity may not be guaranteed. Intermediaries should clearly not be appointed on a ‘just in case’ basis, or because it might make life easier for the court, but equally advocates should not be required to stray beyond their reasonable professional competence to make up for the absence of an intermediary where one is necessary.” When dealing with the proceedings at the centre of this appeal, the Court of Appeal judgment sets out that consideration should be given to counsel’s capacity to support the participation of their client whilst performing their other duties: Paragraph 73 (2) “As is often the case in care proceedings, counsel would be conducting the fact-finding hearing without the benefit of a representative from her instructing solicitors, meaning that she would have to assist the mother whilst calling and cross-examining witnesses. That was something to which the judge should have had regard.” | The Court of Appeal judgment indicates that an advocate skilled in working with clients who have communication differences or difficulties is not a silver bullet in terms of effective participation. From our intermediaries’ experience, it is incredibly challenging, even for exceptional advocates, to facilitate a client’s effective participation while running their case. For example, it is often not possible for an advocate to be on their feet, while also monitoring the attention, emotional regulation and understanding of their client, while additionally delivering tailored communication strategies (e.g., simplified verbal summaries, visual aids, annotations, checklists etc). Similarly, in conference, there may be a great deal of additional demands an advocate must juggle. They may need to move between attending advocates’ meetings, drafting submissions and other competing tasks, while their client requires considerable extra time and support to understand a key document in a case, the conflicting positions of multiple parties, complex medical evidence or simply how the hearing will progress. An intermediary can provide dedicated, person-centred assistance with such matters. The extent to which an advocate can accommodate the effective participation of their client will, of course, vary according to the needs of the client in question. Other factors, for example the fact that “continuity [of advocate] may not be guaranteed” may also affect the extent to which an individual’s effective participation can be accommodated by their representative ‘on the day’. Rapport and attunement are often crucial ingredients in successful support of an individual’s effective participation – which leads us on to consider what constitutes intermediary appointment on a “just in case basis”… | |
Intermediaries should not be used on a ‘just in case’ basis and participation directions should remain a live issue throughout proceedings. Paragraph 24. “The court will no doubt seek to avoid making repetitive orders, but may give directions that last for certain hearings only, and revisit and revise directions in the light of experience.” | While an intermediary certainly should not be allocated on a “just in case basis”, the question of what is a “just in case basis” vs. a ‘reasonable possibility that an intermediary will be necessary’? is one which we are keen to discuss more deeply with judges and legal practitioners. This question does not only apply to possible changes in advocate. It is also applicable when considering the many unexpected changes which can arise over the course of Family Proceedings. A case which, at the outset, may be relatively straightforward with few parties and widespread agreement on most issues, may later involve complex evidence and competing positions which become more challenging for an individual to understand. This can happen at short notice. We are grateful for the indication that participation directions should remain a live issue which is reviewed throughout proceedings (including in instances where support can be stepped down). This is surely the only practical way in which to ensure intermediaries are not allocated on a “just in case basis” but are equally provided where necessary when communication demands increase. However, the question of how this can be practically achieved without undue burden upon Court time is another topic which we believe requires further interdisciplinary consideration and discussion. | |
Applications for intermediaries should make clear what measures are sought, at what stage of proceedings and why. Paragraph 23. “FPR rule 3A.10 supposes that an application will be made in the document that originates the proceedings or by a later Part 18 application. The application must explain what measures are sought and why each of them would be likely to improve participation or the quality of evidence – FPR rule 3A.10 and PD3AA paragraph 6.” Paragraph 24. “If an intermediary assessment is granted, and the recommendation is for intermediary assistance, it should again be made clear what actual order is being sought. In particular, there should be clarity about what hearings or parts of hearings an intermediary would attend, and whether it is suggested that an intermediary is required for other legal meetings inside or outside the court building. The provision of a draft order will assist.” Paragraph 6. “An application for an intermediary must have an evidential basis. This will commonly take the form of a cognitive report and, if authorised, an intermediary assessment. Other evidence may come from the social worker or the Children’s Guardian. The court can also take account of submissions on behalf of the vulnerable person, and from the other parties…” Paragraph 27. “The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate. Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act. The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement.” | Considering the specific needs of an individual and the specific demands of each stage of proceedings is an essential exercise to undertake in order to implement the right adjustments at the right time, and to allocate resources appropriately. However, there is currently a lack of clarity around the “two step” process relating to intermediaries. For example, at ‘step one’, an advocate will apply for an intermediary assessment. At this stage, they will likely not know exactly what measures they are applying for nor the full rationale behind any measures they will seek. The ensuing intermediary report will then clarify the stages at which intermediary assistance is found to be necessary, and the reasons why this conclusion has been reached. A more detailed and specific application can then be made by advocates at ‘step two’. Communicourt has been working internally to develop a fresh approach to report writing which presents the above information in a manner which will be of most assistance to the Court. We are currently piloting this new approach and hope to roll it out organisation-wide over the coming months. However, exactly how these “two step” applications should be made (and what evidential basis is required at what stage), is an outstanding area in which further clarification would be very much welcomed, to ensure the judiciary and advocates have a clear procedure to follow. |
Reflection: Moving towards improved information-sharing and active collaboration
This Court of Appeal judgment provides an opportunity for all professionals working with Court users with communication needs to reflect upon and improve their practice, from intermediaries to the judiciary.
Ensuring decisions regarding participation are holistic, responsive and supported by all of the available information is crucial to ensuring the right Court users receive the right level of support at the right stages to ensure effective participation. In our view, this calls for stronger working relationships, more communication and better information-sharing between all relevant professionals and lay people.
Every case is different. This means that interdisciplinary collaboration is key. So, too, is careful consideration of the individual’s needs at each stage – from preparatory conferences to judgment.
There are many strands of information to consider – and these strands may be ‘owned’ by different professionals and lay people. For example,
- A judge will have oversight of the case, its likely structure and relative complexity, as well as its competing demands.
- An intermediary will have focussed information about the individual’s communication needs and the strategies necessary to ensure their effective participation.
- A solicitor will have insight into the individual’s participation in legal conferences and may be the first professional to identify a communication barrier impacting their client’s participation in proceedings.
- A barrister will know what level of assistance they can practically provide to support their client’s participation.
- A clinical psychologist can offer their expert opinion, more detailed medical information and standardised scoring from cognitive assessment.
- A social worker may be aware of personal circumstances which will mean the individual faces increased barriers to participation at a particular stage (for example if they have mental health difficulties which are fluctuant and are likely to be exacerbated in response to a particular life event).
The Court of Appeal judgment notes at Paragraph 6, “Other evidence may come from the social worker or the Children’s Guardian. The court can also take account of submissions on behalf of the vulnerable person, and from the other parties, as they may have their own perspectives on the overall fairness of the proceedings. This reflects the collaborative nature of the task of identifying and making adjustments for vulnerability”.
As recommended in the judgment, ensuring intermediaries have access to resources like cognitive assessments is certainly a helpful step towards better sharing of these ‘strands’ of information. In order to work towards more effective consideration and accommodation of communication needs, we also believe that further discussion is required around topics including:
- When and how Ground Rules Hearings are held
- Mechanisms to support ongoing review of participation directions throughout a case
- How relevant professionals can better collaborate to continually improve practice within the Family Justice System.
With closer interdisciplinary collaboration, we hope that we can collectively strive to reduce the “risk that pressure in any system is disproportionately felt by those least able to bear it” and to ensure the Court can “adapt its procedures to achieve fairness for vulnerable individuals, in particular by ensuring that all participants are on an equal footing in the light of the importance and complexity of the issues.” (paragraph 12).
Further reading:
We’re also grateful for involvement in and coverage of this judgment by a number of contributors. Here are some additional sources we have found helpful when reflecting on this development:
- Necessity is the mother of intermediaries – Lucy Reed, PinkTape
- Intermediaries: There is no warrant for overlaying the test of necessity – Holly Hilbourne-Gollop, St Ives Chambers
- Important decision on use of intermediaries in family proceedings handed down by Court of Appeal – James Holmes, Garden Court Chambers
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).