Category: Blog post

Reaffirming Necessity: Court of Appeal Clarifies Test for Intermediaries – Communicourt Digest

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 judgmentDiscussion and action points
The test of necessity is the only test which should be applied when considering intermediary applications.
 
Paragraph 7(2). “The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing.”

Paragraph 51. “…as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.”  

This test is set out in Part 3A and Practice Direction 3AA of the Family Procedure Rules 2010 (FPRs), which are appended to the Court of Appeal judgment in full.

Paragraph 7(2) continued: “Decisions are person-specific and task-specific, and the introduction of other tests upsets the balance struck by the FPR and may draw attention away from the circumstances of the individual case.”		We are grateful for clarity around the tests that should be applied when considering intermediary applications.
 
The Court of Appeal judgment removes recent tests based on concepts such as rarity, exceptionality and a ‘spectrum of vulnerability’, noting:

Paragraph 41. “There is […] no warrant for overlaying the test of necessity with concepts of rarity or exceptionality.  Frequency is not a test, and nor is exceptionality.  Similarly, the introduction of tests of “compelling reasons” […] beckon the court to short-circuit its consideration of the evidence in the individual case.”

To support the Court to consider this crucial test of necessity, we have been piloting a new approach to intermediary reporting which provides more granular detail regarding:
 
– communication needs,
– whether any needs will mean the individual faces barriers to effective participation (and if so, at what specific stage).
– the measures necessary to overcome any barriers.
– additional measures the court can implement without intermediary assistance (where relevant).
 
We anticipate rolling out this new approach organisation-wide over the coming months and seeking feedback from legal professionals to continually improve our reports.
 
A note on when we recommend:

Communicourt intermediaries do not recommend intermediary assistance in 28% of cases (2024-25 data), for example where an individual’s effective participation can be accommodated by the Court, or where a person’s needs are so significant that intermediary assistance will not ensure effective participation.
 
We assess each individual’s communication profile in detail, alongside their response to possible communication strategies. We only recommend intermediary use in cases where:
 
– We identify that a communication need will prevent an individual’s effective participation at one or more stages of proceedings.
– We identify intermediary strategies which will successfully support the individual’s participation.
– Intermediary assistance is necessary (e.g. other adaptations and measures will not be sufficient to support participation).
The necessity of intermediary assistance should be considered holistically, at all stages of proceedings.

Paragraph 25.“…the primary focus of an intermediary appointment is to assist with communication within the courtroom, and in particular to enable the vulnerable person to give their best evidence.  However, […] participation directions are not limited to these functions.  The last of these provisions requires that, when considering whether the participation of any party or witness in the case is likely to be diminished by reason of vulnerability, the court should consider the ability of the party or witness to
 
“a) understand the proceedings, and their role in them, when in court;

b) put their views to the court;

c) instruct their representative/s before, during and after the hearing; 

d) attend the hearing without significant distress.”
 
Moreover, a party’s ‘participation in proceedings’ includes giving instructions and making written statements, a process that requires questions and answers.  The witness statement of a witness called to give oral evidence will stand as their evidence in chief unless the court directs otherwise – FPR rule 22.6(2).”

Regarding the extent of the intermediary role, at paragraphs 39 and 43, the Court of Appeal judgment states that Part 3A and PD3AA should be considered in full, highlighting that other recent judgments had erroneously focused on 3A.1 in isolation, resulting in the role of an intermediary being inaccurately reduced to largely assisting with evidence only (paragraphs 39 and 43).		The judgment contains a helpful reminder of the ‘building blocks’ of effective participation in Family proceedings.

The Court of Appeal judgment makes clear that effective participation in Family proceedings extends beyond the giving of evidence, and includes a person’s ability to instruct their legal team, and understand proceedings.

The potential role of an intermediary is also clarified in this judgment, which notes that this extends beyond facilitating an individual’s evidence (which is set out in the FPRs in their entirety).
 
We read the Court of Appeal’s points regarding conferences outside of Court with interest. It is positive to see recognition that an individual’s statement is their ‘primary evidence’, the preparation of which requires them to understand and respond clearly to questions.
 
We often recommend intermediary involvement in preliminary conferences due to the considerable communication demands placed upon Court users and the importance of effective participation at this stage (which can have a significant impact at later stages of proceedings). We agree that this measure will not be required in every case, and should involve careful consideration of information from solicitors, intermediaries and other sources. Decisions regarding adjustments at this stage (as at any stage), must be, as the Court of Appeal notes, “person-specific and task-specific”. 
 
For example, some Court users with communication needs may find communication somewhat easier in a private conference with a solicitor they have an established rapport with. However, familiarity and a more informal setting will not always be sufficient to address all barriers to participation: cases may hinge on complex timelines, consequential thinking, abstract legal concepts, lengthy and detailed written documents, all of which can pose significant challenges depending on the individual’s needs and difficulties. Discussing emotive matters in depth may be dysregulating (with additional impacts upon communication) and the individual’s presentation may fluctuate depending on a wide range of factors (sleep, medication, mental health etc).
Cognitive reports should be provided to the assessing intermediary.

Paragraph 26. “If the court then approves an intermediary assessment, the cognitive report should be supplied to the assessor.”
 

Where cognitive (and other) reports are provided at, or ahead of, an intermediary assessment, we review this information and refer to it as part of our assessment and reporting practice.
 
However, in the majority of cases, we do not currently receive reports at this stage. Our data shows that, to date in 2025, we received other professional reports as part of a referral in 21% of cases.
 
Action point for Communicourt: We will explore how we can more proactively seek additional professional reports from solicitors as part of our referrals process, to ensure any available reports are reviewed by assessors at this stage.
 
Action point for solicitors: Please share any relevant professional reports via our referral portal as soon as possible. This can be done when you make the initial referral (here’s a quick how to guide).
 
If reports become available after the initial referral has been made, please email them to: admin@communicourt.co.uk, citing the case number and your client’s name.
Advocates simply cannot “do it all”.
 
Paragraph 7. “The court is entitled to expect specialist family lawyers to have a good level of understanding of the needs of vulnerable individuals in proceedings and an ability to adapt their communication style.  It will consider what can reasonably be expected of the advocates, and in particular of the vulnerable party’s advocate in the individual case, bearing in mind that professional continuity may not be guaranteed.  Intermediaries should clearly not be appointed on a ‘just in case’ basis, or because it might make life easier for the court, but equally advocates should not be required to stray beyond their reasonable professional competence to make up for the absence of an intermediary where one is necessary.”

When dealing with the proceedings at the centre of this appeal, the Court of Appeal judgment sets out that consideration should be given to counsel’s capacity to support the participation of their client whilst performing their other duties:
 
Paragraph 73 (2) “As is often the case in care proceedings, counsel would be conducting the fact-finding hearing without the benefit of a representative from her instructing solicitors, meaning that she would have to assist the mother whilst calling and cross-examining witnesses. That was something to which the judge should have had regard.”  

 		The Court of Appeal judgment indicates that an advocate skilled in working with clients who have communication differences or difficulties is not a silver bullet in terms of effective participation.
 
From our intermediaries’ experience, it is incredibly challenging, even for exceptional advocates, to facilitate a client’s effective participation while running their case.

For example, it is often not possible for an advocate to be on their feet, while also monitoring the attention, emotional regulation and understanding of their client, while additionally delivering tailored communication strategies (e.g., simplified verbal summaries, visual aids, annotations, checklists etc).
 
Similarly, in conference, there may be a great deal of additional demands an advocate must juggle. They may need to move between attending advocates’ meetings, drafting submissions and other competing tasks, while their client requires considerable extra time and support to understand a key document in a case, the conflicting positions of multiple parties, complex medical evidence or simply how the hearing will progress. An intermediary can provide dedicated, person-centred assistance with such matters.
 
The extent to which an advocate can accommodate the effective participation of their client will, of course, vary according to the needs of the client in question.  
 
Other factors, for example the fact that “continuity [of advocate] may not be guaranteed” may also affect the extent to which an individual’s effective participation can be accommodated by their representative ‘on the day’. Rapport and attunement are often crucial ingredients in successful support of an individual’s effective participation – which leads us on to consider what constitutes intermediary appointment on a “just in case basis”…
Intermediaries should not be used on a ‘just in case’ basis and participation directions should remain a live issue throughout proceedings.

Paragraph 24. “The court will no doubt seek to avoid making repetitive orders, but may give directions that last for certain hearings only, and revisit and revise directions in the light of experience.”		While an intermediary certainly should not be allocated on a “just in case basis”, the question of what is a “just in case basis” vs. a ‘reasonable possibility that an intermediary will be necessary’? is one which we are keen to discuss more deeply with judges and legal practitioners.  
 
This question does not only apply to possible changes in advocate. It is also applicable when considering the many unexpected changes which can arise over the course of Family Proceedings. A case which, at the outset, may be relatively straightforward with few parties and widespread agreement on most issues, may later involve complex evidence and competing positions which become more challenging for an individual to understand. This can happen at short notice.
 
We are grateful for the indication that participation directions should remain a live issue which is reviewed throughout proceedings (including in instances where support can be stepped down). This is surely the only practical way in which to ensure intermediaries are not allocated on a “just in case basis” but are equally provided where necessary when communication demands increase.
 
However, the question of how this can be practically achieved without undue burden upon Court time is another topic which we believe requires further interdisciplinary consideration and discussion. 
Applications for intermediaries should make clear what measures are sought, at what stage of proceedings and why.
 
Paragraph 23. “FPR rule 3A.10 supposes that an application will be made in the document that originates the proceedings or by a later Part 18 application.  The application must explain what measures are sought and why each of them would be likely to improve participation or the quality of evidence – FPR rule 3A.10 and PD3AA paragraph 6.”
 
Paragraph 24. “If an intermediary assessment is granted, and the recommendation is for intermediary assistance, it should again be made clear what actual order is being sought.  In particular, there should be clarity about what hearings or parts of hearings an intermediary would attend, and whether it is suggested that an intermediary is required for other legal meetings inside or outside the court building.  The provision of a draft order will assist.”

Paragraph 6. “An application for an intermediary must have an evidential basis.  This will commonly take the form of a cognitive report and, if authorised, an intermediary assessment. Other evidence may come from the social worker or the Children’s Guardian.  The court can also take account of submissions on behalf of the vulnerable person, and from the other parties…”

Paragraph 27. “The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate.  Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act. The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement.”		Considering the specific needs of an individual and the specific demands of each stage of proceedings is an essential exercise to undertake in order to implement the right adjustments at the right time, and to allocate resources appropriately.
 
However, there is currently a lack of clarity around the “two step” process relating to intermediaries. For example, at ‘step one’, an advocate will apply for an intermediary assessment. At this stage, they will likely not know exactly what measures they are applying for nor the full rationale behind any measures they will seek.
 
The ensuing intermediary report will then clarify the stages at which intermediary assistance is found to be necessary, and the reasons why this conclusion has been reached. A more detailed and specific application can then be made by advocates at ‘step two’.
 
Communicourt has been working internally to develop a fresh approach to report writing which presents the above information in a manner which will be of most assistance to the Court. We are currently piloting this new approach and hope to roll it out organisation-wide over the coming months.
 
However, exactly how these “two step” applications should be made (and what evidential basis is required at what stage), is an outstanding area in which further clarification would be very much welcomed, to ensure the judiciary and advocates have a clear procedure to follow.

Reflection: Moving towards improved information-sharing and active collaboration

This Court of Appeal judgment provides an opportunity for all professionals working with Court users with communication needs to reflect upon and improve their practice, from intermediaries to the judiciary.

Ensuring decisions regarding participation are holistic, responsive and supported by all of the available information is crucial to ensuring the right Court users receive the right level of support at the right stages to ensure effective participation. In our view, this calls for stronger working relationships, more communication and better information-sharing between all relevant professionals and lay people.

Every case is different. This means that interdisciplinary collaboration is key. So, too, is careful consideration of the individual’s needs at each stage – from preparatory conferences to judgment.

There are many strands of information to consider – and these strands may be ‘owned’ by different professionals and lay people. For example,

  • A judge will have oversight of the case, its likely structure and relative complexity, as well as its competing demands.
  • An intermediary will have focussed information about the individual’s communication needs and the strategies necessary to ensure their effective participation.
  • A solicitor will have insight into the individual’s participation in legal conferences and may be the first professional to identify a communication barrier impacting their client’s participation in proceedings.
  • A barrister will know what level of assistance they can practically provide to support their client’s participation.
  • A clinical psychologist can offer their expert opinion, more detailed medical information and standardised scoring from cognitive assessment.
  • A social worker may be aware of personal circumstances which will mean the individual faces increased barriers to participation at a particular stage (for example if they have mental health difficulties which are fluctuant and are likely to be exacerbated in response to a particular life event).

The Court of Appeal judgment notes at Paragraph 6, “Other evidence may come from the social worker or the Children’s Guardian.  The court can also take account of submissions on behalf of the vulnerable person, and from the other parties, as they may have their own perspectives on the overall fairness of the proceedings.  This reflects the collaborative nature of the task of identifying and making adjustments for vulnerability”.

As recommended in the judgment, ensuring intermediaries have access to resources like cognitive assessments is certainly a helpful step towards better sharing of these ‘strands’ of information. In order to work towards more effective consideration and accommodation of communication needs, we also believe that further discussion is required around topics including:

  • When and how Ground Rules Hearings are held
  • Mechanisms to support ongoing review of participation directions throughout a case
  • How relevant professionals can better collaborate to continually improve practice within the Family Justice System.

With closer interdisciplinary collaboration, we hope that we can collectively strive to reduce the “risk that pressure in any system is disproportionately felt by those least able to bear it” and to ensure the Court can “adapt its procedures to achieve fairness for vulnerable individuals, in particular by ensuring that all participants are on an equal footing in the light of the importance and complexity of the issues.” (paragraph 12).


Further reading:

We’re also grateful for involvement in and coverage of this judgment by a number of contributors. Here are some additional sources we have found helpful when reflecting on this development:


If you have any questions regarding intermediary assistance for your client in light of this judgment, please contact admin@communicourt.co.uk or telephone us on 0121 663 0931 (Mon-Fri, 9am-4.45pm).

White text on blue background. It reads: Update: New guidance from Court of Appeal regarding intermediaries: "The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing”

Update: Court of Appeal Judgment clarifies test for intermediary applications

Following the successful appeal of a decision to deny intermediary assistance to a mother in care proceedings, the full Court of Appeal judgment in Re M (A Child: Intermediaries) [2025] EWCA Civ 440 has been published.

We are very, very pleased that the mother in this case will now receive the intermediary assistance our assessor and a psychologist found to be necessary to ensure her effective participation in complex proceedings.

The Court of Appeal decision removes the additional tests advised in recent Family Court judgments and guidance. This includes tests of “rarity” or “exceptionality”, and tests relating to “compelling reasons” or a “spectrum of vulnerability”.

Instead, only the pre-existing “test of necessity” set out in the Family Procedure Rules (Part 3A) should continue to be applied when considering intermediary applications.

We are reviewing this important judgment carefully, as there are many points of learning and reflection for us to consider.

Our mission, as always, is to ensure that Court users with communication needs receive the assistance necessary to ensure they can meaningfully participate in cases which could shape the course of their lives. In light of this change in practice, we will be exploring how we can best assist the Courts “to achieve fairness for vulnerable individuals, in particular by ensuring that all participants are on an equal footing in the light of the importance and complexity of the issues” (paragraph 12, RE: M).

We will provide a more detailed response to the judgment in this case over the coming weeks.

A picture of Tess in front of an turquoise background featuring the circular logo for the "Innovation" LOVE Award. Tess is holding the LOVE Award trophy and her certificate.

Congratulations to this Winter’s LOVE Award Winners

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.

A picture of Fiona in front of an orange background featuring the circular logo for the "Respect" LOVE Award.

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.

A picture of Tess in front of an turquoise background featuring the circular logo for the "Innovation" LOVE Award. Tess is holding the LOVE Award trophy and her certificate.

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.

A picture of Charlee in front of a green background featuring the circular logo for the "Collaboration" LOVE Award. Charlee is holding the LOVE Award trophy and her certificate.

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.

A picture of Penny in front of a red background featuring the circular logo for the "Courage" LOVE Award. Penny is holding the LOVE Award trophy and her certificate.

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.

A picture of Sue in front of a blue background featuring the circular logo for the "Diversity" LOVE Award.

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):

A photo of a tabletop. You can see two people's hands. They are facing each other. On is holding a coffee. The other is sitting with a book in front of them. They appear to be in conversation.

Building rapport: Why connection matters in court communication

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:

“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”.

“A service user brought an entire bag of toys and trinkets to her assessment, so we spent the first 15 minutes going through her bag. She asked me to introduce myself to one of the dolls, and often spoke to her during the assessment. I incorporated the doll into the assessment as much as possible to maintain the rapport we had built through this shared introductory activity.”

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.

Intermediary case law update: Mr Justice Williams [2024] EWHC 906 (Fam)

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 judgmentPoints 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

– Adoption by advocates of the techniques set out in The Advocate’s Gateway toolkits.		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).

Photo of people hands - an intermediary is helping a court user who is holding a fidget aid while useing a visual timeline and break cards

Working as a Neurodivergent Intermediary

Poster for Neurodiversity Celebration Week (March 18-24, 2024) www.neurodiversityweek.com - featuring Communicourt's logo.

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.

Logo for the RCI Group's Neurodiversity Network

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.

Simosons gif showing Homer setting a ticking timer to represent the Pomodoro method

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.

The Access Brief LogoIf 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.

Intermediary case law update: Mrs Justice Lieven [2024] EWHC 79 (Fam)

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) guidancePoints 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).

National business award for Communicourt

Communicourt has been handed the silver award for Positive Impact in the SME National Business Awards.

The Positive Impact Award is for businesses who innovate and adapt to thrive and benefit the wider community. The awards ceremony took place on Friday 1 December at Wembley Stadium.

Communicourt was recognised for innovations such as The Access Brief, a free library for legal professionals working with a client who has a communication difficulty. We collaborated with academics and organisations to develop resources which help legal professionals accommodate communication differences and difficulties at court (even in cases where an intermediary is not allocated). Our collaborators have included academics and charities such as STAMMA (stammering charity), Different Strokes (stroke charity), Dementia UK, and PTSD UK.

Managing Director William Scrimshire said: “It is so exciting to win the award as it recognises the hard work that the Communicourt team put into having a positive impact on our service users and other stakeholders. We are proud to be at the forefront of special measures and inclusion in the courts, enabling everyone to have fair access to justice.”

 

 

 

DLD Day: A hidden difficulty in legal proceedings

20th October 2023 marks Developmental Language Disorder (DLD) Day. The importance of this event is not to be underestimated. DLD is one of the least known speech, language and communication difficulties, but a condition which affects approximately 7.6% of all children (amounting to around 1 million children in the UK). Its prevalence in adults is unknown, however, DLD is a lifelong condition and a great many adults with DLD are likely to be undiagnosed.

What is DLD?

DLD is a learning difficulty (like dyslexia, ADHD and dyspraxia), which specifically affects an individual’s language skills. A person with DLD will have difficulty “learning, understanding and using language”. They may struggle to follow language (e.g., instructions and verbal information), find it difficult to learn new vocabulary (for example, terminology used in a court case), and have difficulty expressing themselves with clarity.

In terms of expressive language, a person with DLD may use very short and simple sentences, struggling to express more complex or detailed information clearly. They may make more frequent use of generic placeholder words instead of specific terms (e.g., “Thingy” instead of “Threshold”), their expressive language may be ‘jumbled’ and difficult to follow (featuring lots of hesitations, broken sentences, or verbs which don’t match with pronouns).

Quick Resources

You can find a factsheet on DLD from Raise Awareness of DLD (RADLD) here.

Download Communicourt’s free guide to DLD in legal proceedings here (which includes tips for legal professionals working with a client who has DLD).

Listen to our Accessing Justice Podcast episode on DLD with Becky Clark (speech & language therapist)

DLD in adults

Although DLD prevalence statistics generally relate to children, DLD is a lifelong condition, which also affects adults. Previously known by other labels such as Specific Language Impairment (SLI), and expressive-receptive language disorder, today’s terminology for the condition was coined in 2017. Prior to the use of this diagnostic label, few diagnoses of “SLI” (and related terms) were made. As such, very few adults with DLD have ever received a diagnosis or specific support for their language difficulties.

Working as an intermediary, I am yet to encounter an adult who has a diagnosis of DLD, despite encountering many court users who present with specific difficulties with language (unrelated to another diagnosis, such as a learning disability).

This lack of diagnosis, combined with widespread unawareness of DLD, results in many adults living with a hidden learning difficulty. This carries with it many possible negative impacts, including an increased likelihood of interaction with the criminal justice system.

To mark DLD Day in 2022, we shared some statistic regarding the prevalence of DLD in the criminal justice system (CJS). These statistics remain troubling, illustrating the high level of language difficulty within the CJS:

Raise Awareness this DLD Day

This year, the theme of DLD Day is DLD Around the World, spreading awareness of DLD in countries across the globe. You can find lots of resources, including DLD factsheets in different languages on the RADLD website. Here you will also find information about the DLD “Light Up” events (where buildings across the world are illuminated in purple and yellow to raise awareness) and lots of brilliant resources (like pre-made social media posts) you can share to increase awareness and understanding of DLD. To show your support, why not…

Green speech bubble on yellow background, inside the bubble are three dots, indicating a pause.

Understanding Selective Mutism & adapting legal proceedings

Green speech bubble on yellow background, inside the bubble are three dots, indicating a pause.

October is Selective Mutism Awareness Month. This month, we published a new edition of the Accessing Justice Podcast. In the latest episode, intermediary, Demi, interviews speech & language therapist Susannah Thomson about all things Selective Mutism (including the fantastic work of SMIRA, the Selective Mustism Information & Research Association). Demi has also produced a blog, exploring the topic in more detail, considering its possible impacts in legal proceedings and sharing some strategies which can assist court users with selective mutism (SM) – which legal professionals can use. Take a listen and read more below:

What is selective mutism?

Selective mutism is a condition in which individuals are unable to speak in certain situations. The situations in which the person may be unable to speak vary. For some, it may affect them in public settings, or around professionals, for others, it may impact their communication with relatives or specific people in their lives. Selective mutism is thought to be an anxiety disorder. Although it can impact adults, it is believed to be more common in children and often arises during childhood.

In this post, we will be exploring selective mutism, its possible impact on court users, alternative communication approaches and strategies to facilitate communication with someone who has selective mutism during legal proceedings. 

Although many adults have selective mutism (including a number of court users who work with an intermediary), research into the condition overwhelmingly focuses on selective mutism in childhood. The following are facts and statistics arising from this research:

  • Selective mutism is thought to be an anxiety disorder. This can mean a person is unable to speak in certain social situations, such as with classmates at school or to relatives they do not see very often.
  • Selective mutism affects about 1 in 140 young children. It’s more common in girls and children who have recently moved to a new country.
  • Research suggests that there is no single cause for the condition. However, psychologists believe that factors such as, emotional, psychological and social experiences can impact the condition (Johnson & Wintgens, 2001).
  • Those with Selective Mutism will speak in some situations e.g., at home but remain consistently silent in others (court proceedings). They may have a blank expression or appear ‘frozen’ when expected to speak (Goodman & Scott, 1997).
  • It is important to know that people with Selective Mutism often want to speak but, due their anxiety and other factors, they feel physically unable to do so.
  • Although research focuses on selective mutism in childhood can also persist into, or arise in, adulthood. Currently there are no statistics to indicate how many adults experience Selective Mutism. However, it is noted that less than 1% of the overall population experience Selective Mutism.

Common selective mutism presentations:

Selective Mutism presents differently in each individual. However, there are some common symptoms and presentations which may be seen in people with the condition. They may:

  • Find it difficult to look at you when they are anxious – they may turn their heads away and seem to ignore you. You might think that they are not engaging, but this is often not the case. Instead, they are likely to be having difficulty responding.
  • Not smile or look blank or expressionless when anxious – in court, for example, they may be feeling anxious much of the time and it may, therefore, be challenging for them to express themselves non-verbally.
  • Move stiffly or awkwardly when anxious, or if they think that they are being watched.
  • Find it very difficult to answer to questions asked of them, or to say hello, goodbye or thank-you – this may appear rude, but it is not intentional.
  • Be slow to respond in any way to a question (including when using alternative communication strategies – see below).
  • Worry more than other people.
  • Be very sensitive to noise, touch or crowds.
  • Be intelligent, perceptive and inquisitive.
  • Be very sensitive to the thoughts and feelings of others.
  • Find it difficult to express their own feelings.
  • Have good attention skills.

Impact in legal proceedings

For court users with selective mutism, communicating, engaging and participating in legal proceedings can be particularly challenging. Communication is essential to effective participation, from giving instructions to a solicitor, to giving evidence in the courtroom. When court users face a ‘communication gap’ they may be unable to tell their legal team when they disagree with a point of evidence or ask questions about an aspect of their case they do not understand.

There are also many specific stages in different legal proceedings when selective mutism may result in difficulties with participation. For example, in criminal proceedings, individuals are expected to address the court to state their date of birth, name, address and plea. For an individual with Selective Mutism, this may not be possible verbally. Meanwhile, for unrepresented parties (e.g., in a private family case), there are even greater demands upon communication in the courtroom itself, in the absence of an advocate to speak on their behalf.

It’s also important to note that, for some people with selective mutism, meetings with professionals (e.g., their solicitor or the guardian in care proceedings) and being in a formal court setting, discussing emotive topics or great personal significance, are likely to increase anxiety which can exacerbate selective mutism symptoms. This may make it particularly challenging for individuals to communicate verbally and regulate their emotions during legal proceedings.

Alternative communication at court

simple communication cards (Yes, No, Don't know, Break please)

In order to support an individual with selective mutism to communicate at different stages in proceedings, alternative communication strategies are often necessary. For example, an individual selective mutism could:

  • Tell the information to a trusted communication partner they feel able to speak to. The communication partner can then repeat the information verbatim to the court (or in conferences with the individual’s legal team).
  • Write their response on paper to be shared or read aloud by a nominated person.
  • Write their response on a whiteboard to be held up.
  • Type their response on a laptop. This could be screenshared within the court (so responses can be seen in real time on screen), shown in conferences, read aloud by a nominated person, or read through text-to-speech software (see below).
  • Type their response using a CVP, Teams or Zoom chatbox during a remote or hybrid hearing or meeting.
  • Type their response using a smartphone (this may be a preferred option for court users who are not used to typing with laptops, or who have literacy difficulties – as many phones use predictive options). This could be read aloud by a nominated person.
  • Use gesture or visual aids, if they are unable to read, write or speak to a trusted person (e.g., “Yes”, “No”, “Don’t know”, “Please repeat” cards which the individual can point to). Here is a useful source of free, printable communication cards.

When identifying an alternative communication strategy, there are some important aspects to keep in mind:

  1. The strategy should accommodate the court user’s unique profile of skills, strengths and difficulties. For example, an individual with dyslexia may find hand-writing responses particularly challenging. Alternatively, an older person or individual who does not use technology routinely, may have difficulty using a laptop or smartphone to communicate.
  2. In the individual is giving evidence, the alternative communication strategy should be trialled in advance, to ensure the court user is able to use this method in the courtroom and feels comfortable doing so. Different settings can impact an individual with selective mutism differently and increased anxiety can play a significant role. A familiarisation visit to the witness box or location from which they will give evidence can prove helpful, allowing opportunity for a ‘test run’ (using neutral questions) and acclimatising the court user to the setting (which can reduce anxiety, thereby supporting more effective communication).
  3. If written communication is not possible (for example if the service user is unable to read or write), exploring whether there are individuals with whom they feel able to speak is an important step, as relying on gesture and resources like communication cards is likely to result in limited or unclear responses, which lack detail and clarity. In some cases, a court user may feel able to whisper to this individual, which can then be repeated. In others, they may feel able to speak with the individual in a private space. Their responses can then be written down or typed by the designated person, to be shared with the court user’s legal team or the court (depending on the stage of proceedings).
  4. It’s also important to consider the environment the individual is in, as increased anxiety can adversely impact communication of all types. For example, a person with selective mutism may feel better able to communicate during their evidence if permitted to do so from behind a screen or remotely. During conferences, a person with selective mutism may be unable to speak with their trusted person in front of their legal team, but may feel able to do so if seated in a private room, from which the designated communication partner can relay questions and responses (verbally or in written form).

Text-to-speech tools

If the court user is comfortable typing on a laptop. Text-to-speak software is available, which allows typed messages to be read aloud.

  • Natural Readers – A free text to speech website which can be used by anyone.
  • Speechify – A free website, allowing users to pick the voice and the speed of talking (also available as an app).

Case study

I once attended an assessment to assess a young defendant called Harry [names and indentifying details have been changed]. We met at his solicitor’s office, with his mother present.

When we first met, his mother asked if I knew about his conditions, and I explained I did not. She explained that Harry does not talk and that he has selective mutism. I asked his mum how Harry prefers to communicate, she confirmed that he likes to communicate through pen and paper, and I adapted the assessment process to suit his preferences.

Harry had diagnoses of anxiety, autism and selective mutism. On first meeting, he appeared anxious, he did not make any eye contact and he would use a fidget object that I provided throughout the meeting to assist with his concentration and emotional management.

We were able to complete the assessment using pen and paper. I would ask Harry a question and he would write his answer down. If I had to ask further prompt questions to elicit more information, this process was repeated. I began thinking about ways to make the process easier for him in court proceedings.

I worked with Harry at the first hearing following the assessment. I spoke to Harry and asked whether he would feel comfortable enough to write his answers down and for me to read these to court. Harry communicated that he was comfortable with this approach.  I was very conscious to involve Harry in the process. As he was unable to speak, it was extremely important that he still had a voice in the proceedings. I met with the legal advisor prior to the hearing and explained Harry’s condition and that he did not feel he would be able to speak in the court environment. I explained the strategies discussed with Harry and explored whether the court would accept the proposed approach. The legal advisor explained they were happy with this way forward and happy to make adaptions to allow Harry to participate.

As part of my role as an intermediary, I shared my recommendations with the court during a Ground Rules Hearing before the hearing commenced, to help Harry best participate throughout the trial.

The recommendations which were agreed in court included:

  • All counsel to refer to Harry by his first name, to aid his engagement throughout proceedings and reduce any feelings of anxiety.
  • Harry to be permitted to use a fidget aid, both in the dock and if giving evidence, to assist his concentration.
  • Harry to write his answers to questions down on paper to be read aloud to the court by the intermediary.
  • Any verdict to be read one line at a time, for me to go through this key information in real-time with Harry, to allow him to better understand the final decision.
  • Harry’s mum to sit in the dock, to aid with his anxiety (for emotional support purposes only).

The magistrates approved all of these measures.

Working with Harry more than once allowed me to build rapport with him, as the trial progressed he appeared increasingly comfortable and began to make some eye contact with me. Our communication improved as our rapport built. At times, he felt able to shake his head to indicate “yes” or “no”, which had previously not been possible. The adaptions to his trial allowed him to participate in the proceedings.

Tips and strategies when assisting someone who has selective mutism

  • Get informed. Selective Mutism is a very rare condition and there is a lot of information out there to assist professionals to better support individuals with Selective Mutism. Some useful sources include:
  • Take your time. It is important that an individual with Selective Mutism does not feel pushed or rushed to make decisions. They may need extra time in court proceedings, so you are able to ensure they have a good understanding of proceedings and of any key decisions that need to be made.
  • One size does not fit all. Ensure any adaptations you suggest or implement are person-centred. Take time to when and how the individual is best able to communicate. Talking to those close to them may support your understanding. Use this information to identify adaptations tailoer to the individual (for example, do not suggest texting if the person will not be able to use this strategy), to help ensure they can participate in the best possible way.
  • Encourage non-verbal communication such as, pointing, nodding shaking of their head. Do not try to get them to speak.
  • Look out for phrases such as ‘I don’t know’. This may mean they haven’t understood the question, don’t know how to answer, or simply want to move on. Spend additional time checking understanding, to ensure important information has been processed and retained accurately.

Cited Sources

Maggie Johnson & Alison Wintgens (2001) The Selective Mutism Resource Manual. Speechmark Publishing Ltd.

Robert Goodman & Stephen Scott (1997). Child Psychiatry, Blackwell Science.