Thank you for your support and collaboration in 2024. Wishing all a very happy Winter break and a great start to 2025.
Over the holiday period, the Communicourt offices will be closed between:
24th December (4.45pm) and 2nd January (9am)
We look forward to working with you in 2025!
Max Konarek is Partner and Joint Head of the Family and Childcare Department at GT Stewart Solicitors. He recently represented a parent in care proceedings involving allegations of non-accidental head injuries to a child by one, or both, parents. Max took the case over late in the proceedings after his client changed solicitors. He quickly realised his client had communication needs and didn’t understand what was happening in court.
He spoke to us about this complex case and the stark difference intermediary support made for his client. You can read more about the case here.
My client came to me very late on in the proceedings. The fact-finding hearing was complete, and findings were made by the court that my client had caused the injuries to the child concerned. The case was in the welfare stage, leading into the Issues Resolutions Hearing. My client had not been happy with the representation they had previously had, and they were not happy with the way in which the fact-finding hearing had been conducted.
During the first meetings with my client, a few “red flags” for me arose very quickly. As part of taking on any new client I always explore their educational background to look at what stage they had left school, whether they had any extra assistance at school, or special measures applied, and whether they can read/write. In this particular case, my client had left school early and was also neurodivergent.
In discussions with my client, passing reference was also made to a social worker making a referral for an Advocate to assist them. An Advocate’s role is to provide emotional and practical support to someone, the role is very different to an intermediary, who is a court communication specialist. However, I felt the fact that the social worker had felt it was necessary to make a referral for an Advocate to assist my client, was highly relevant to whether or not they needed an intermediary in the court proceedings.
When I received the papers, I also noticed that post-fact finding the Court had ordered a CUBAS parenting assessment. Whilst these types of assessments are not solely focused upon parents with additional needs (as PAMS assessments were), they are used for a parent whose care potentially demands greater insight, understanding and development.
This all led me to explore with my client what took place at the Fact-Finding hearing in particular. Having done so, even more concerns arose around what had transpired. I cannot provide details due to retaining confidentiality of the case, but I can say there was a stark contrast in how my client was treated in court compared to the other parent who did have the benefit of an intermediary.
When going through different aspects of the evidence in order to gauge my client’s understanding of the case, it became apparent very quickly that he did not understand. I decided to seek the opinions of other colleagues within my team. Alison Barar is a Case Worker and works directly with me on all of my cases. She met with my client and agreed we needed to make an urgent application for our client to be assessed by an intermediary.
I don’t know why my client’s needs had been overlooked previously. I can only assume the previous legal representative did not have sufficient training or experience to identify the client’s needs.
I think this can be looked at in two stages:
Pre-Fact Finding Hearing:
My client did not fully understand the evidence that was put against them. If they do not understand that, they cannot provide the instructions I need to properly fight a case like this. The attention to detail and ability to explore something that might appear to be irrelevant is often how these cases turn in your favour.
Anyone accused of causing a non-accidental injury will have to produce a statement for the Court. The statement allows the person accused to set out a chronology of events that have arisen, possible explanations, any relevant diagnosed and undiagnosed medical history. This can be a lengthy document produced with the assistance of a skilled family lawyer who is able to eke out the details, making the information as clear as possible for any expert and other professionals to read. I put together these documents as a result of a number of appointments with a client, and it often takes tens of hours to produce. When you have a client that has difficulties with communication or understanding then you have to deploy additional strategies to ensure that you can still produce the same quality evidence for a client.
During the Fact-Finding Hearing:
In court there are a number of different ways in which you will be arguing your client’s case and challenging the evidence. In particular, you rely on your client following the evidence that is coming out, understanding it, and where necessary providing you with instructions on points that may not have been clarified before.
Furthermore, when your client is giving evidence you must ensure they are giving the best possible evidence to the court. For example, when a client does not follow the question being asked of them or cannot follow the written evidence in the bundle that they are being taken to, then they are potentially not going to give the correct information, or their emotions may become heightened. The way in which they give evidence and what they say is all being assessed by the Judge in terms of their credibility, and therefore whether or not they have caused the harm alleged.
I have to be very clear with my clients in situations like this that just because we have been successful in re-opening the findings made, it does not mean that the Court will find they have not caused the harm. It may well be that the evidence still points toward findings against them being made.
Some may question why we bother then if the outcome may be the same? The only answer I can give is to say that a person’s Article 6 Rights are absolute; it underpins the court system in which we rely upon to find justice in all cases. Ultimately, I want to know that I have done everything I can to ensure that my client’s case was fought as it should be, to make sure that the process was fair. Equally I want my client to feel that the case was fair for them and that they come away at the end of the case knowing they have done everything in their power to fight to have their child returned home, regardless of what the actual outcome is. That, in itself, is huge for a parent in these sorts of cases – the effects of still questioning whether they could have done more, or whether they felt the process was fair, can in itself have a significant impact on their emotional and mental wellbeing for the rest of their life.
As a legal representative, it is one of your many roles assisting a client in family proceedings to identify, where necessary, that a client requires additional help. If you do not do so, how can you monitor the court process and argue in Court or raise concerns where necessary, saying that the court process is not Article 6 compliant (Right to a Fair Trial)?
It is a core principle of the Solicitors Regulation Authority (SRA) Code of Conduct to “maintain your competence to carry out your role and keep your professional knowledge and skills up to date”. Therefore, the onus is on you as a legal representative, and any team or department supervisor, to take a view as to whether or not you have the skills to represent a particular client.
I readily accept that time, professional experience, remote conferences, apparent disengagement of client, lack of disclosure by client, can all play a factor in a client’s needs being missed – these however are not excuses. Steps have to be taken to mitigate such issues. Ultimately as a legal representative it is your job to identify a possible need, set out to the client in a way they will understand what advice you have to address that need, and then act upon instructions given to you.
You will get clients from time to time that do not accept your advice and will not engage in an expert assessment or accept the need to engage in an intermediary assessment. That is their right and their choice. When that arises, I explain the consequences of such a decision in clear and simple terms. In the context of an intermediary, I will also re-visit with my client the need for an intermediary at different stages, if it has been refused previously by the client. Often when you have a vulnerable client, there are external factors that can impact upon the instructions they provide to you at any given time.
Skills do vary – some legal professionals are naturally very good with clients that have additional needs, that are neurodiverse and / or those that require an intermediary; other legal professionals aren’t. The case highlighted at the start of this interview is a prime example of that – I took the case over where my client had involvement with 3 legal professionals (lawyer and two counsel) that represented the client over a period of 1 year or so, all of whom did not pick up on the fact that an intermediary was necessary or at the very least should be explored further.
I think there is always room for improvement for anyone, whether they are training to come into the legal sector, or have 30 years post-qualification experience.
I think this ties in for example with organisations like the Family Law Advice for Neurodivergent Community (FLANC). It is about time an organisation like FLANC exists and I am a staunch advocate and supporter of what they are doing. One of FLANC’s core beliefs is that there should be mandatory training for family justice professionals around neurodiversity.
Whilst not all of my clients that require an intermediary are neurodivergent, many are. Such training proposed could be widened to cover all types of people that require the assistance of an intermediary. There is always new research, new training, new methods of approaching and assisting a client. It is a scenario where in my view there should be mandatory training and continuous professional development requirements for all family justice professionals to help clients with learning disabilities, learning needs and those who are neurodivergent. It will ensure that the family courts are accessible to all.
I fundamentally disagree with this view.
When the potential need for an intermediary arises in a case, often the steps taken are to make a Part 25 application for a psychological or psychiatric assessment; and then in turn apply for an intermediary assessment. At the stage of these applications being made, very simple steps can be taken by the advocates involved to ensure directions are made by the Court which will save time. For example, Part 25 applications for the initial expert application can be done on paper if needed. Follow on directions can be made for an intermediary assessment to be undertaken, report completed and intermediary attending future hearings – but this only follows if there is a positive recommendation by the expert.
Each and every party that is assisted by an intermediary will have different needs – I have had cases where a client could only actively engage in a court hearing for 2-3 hours in a day (meaning the 5 day final hearing was 10 days as a result). I have had others where regular breaks are needed; I have had clients where it has mainly been the language used in court which needed to be monitored. Having an intermediary appointed when one is necessary is a fundamental Article 6 Right for the party involved. If the needs of that party mean that the court case must be slower as a result of their needs, then that cannot, and should not be an issue in my view.
I have outlined above the steps I took in seeking to re-open the fact finding – whilst my application was plainly an unpopular one to make, particularly in the context of delay, had I not, or had the Court not granted the application then there was a real risk that the Court makes an unsafe decision at the end of the case – potentially adoption. If an intermediary had been appointed previously, whilst there may have been a longer fact finding hearing (by a few days perhaps), there would not have been the months of delay that has now arisen as a result of the re-opening application having been made.
The Lieven Judgment follows on from a series of different cases, each one dealing with particular issues around intermediaries and Article 6 compliance (the appellant in Re N was my client, as was the applicant in A Local Authority v Mother & Ors)
Re M [2012] EWCA Civ 1905
Re N [2019] EWCA Civ 1997
A Local Authority v Mother & Ors [2022] EWHC 2793 (Fam)
S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8
The issue can be separated into two categories: (i) The needs of a party were identified or suspected but appropriate steps were not taken to ensure Article 6 compliance; (ii) Where the need for an intermediary was not identified in the original cognitive assessment and the extent of the party’s difficulties is only identified following the subsequent assessment carried out by the new psychologist.
Inevitably this judgment will have some impact on how intermediaries are appointed in family proceedings. Admittedly upon first reading this judgment I was concerned about the trajectory of where intermediary appointments could go. The Lieven judgment does not prevent a court ordering that an intermediary should be appointed – the crucial change there needs to be “compelling” reasons to do so. What is compelling in one case may not be compelling in another. I think as a legal representative you are going to have to really consider the reasons for seeking an intermediary, making sure your argument is succinct and supported by clear evidence.
The judgment referred to an expert recommendation, not necessarily being the deciding factor in whether an intermediary is necessary. In a way I agree with this point – I have for example had a case where an intermediary was not recommended by the psychologist instructed to do a cognitive assessment, but as a result of my own experience being with my client in numerous meetings and different settings. It was obvious to me that an intermediary was necessary, I therefore set out clearly in the application the reasoning for this and the Court ultimately accepted those observations. The difference having an intermediary made thereafter in that case was stark.
Equally, I have had other cases where the Court is not willing to direct an intermediary assessment without there having been an expert psychologist or psychiatrist instructed first to provide an opinion. Ultimately, it will come down to the specific circumstances of the case. As a solicitor representing clients that may need an intermediary, I think you have to look at the wider picture, taking evidence of those needs from different areas and where one is necessary in your view, ensuring that you advocate clearly and thoroughly to the court for one to be appointed.
However, what does concern me is the suggestion of adopting the criminal guidance into family proceedings. I do not believe that the family courts can or should simply adopt the judgment as the two settings are very different from one and other – what works for the criminal court does not necessarily work for the family court. For example, the language used in the family courts is often complex but well understood by the professionals involved. Conversely in the criminal court the language used is tempered in order to ensure that the Jury/lay observer can follow the proceedings without issue. An intermediary therefore appointed in family proceedings will be able to assist in understanding what is being said as the case proceeds, making sure the person they are helping can follow what is being said.
Whilst an intermediary is appointed in the criminal courts to assist the defendant in giving evidence, there is often not provision to ensure that the vulnerable party has understood the evidence against them. This approach would probably concern me the most; it is absolutely vital that my clients understand fully the case against them so that they can provide instructions – it is their basic Article 6 Right.
The Lieven Judgment also noted that there was no clear guidance in the Family Procedure Rules of Practice Directions regarding the appointment of an intermediary. Rather than trying to take a “one size fits all” approach, I would strongly advocate for the Family Courts to have its own guidance; guidance that has been formulated in active consultation with legal professionals, legal professional bodies, and of course intermediaries and the companies that they work for.
Max is a specialist Child Protection Solicitor and is accredited on the Law Society’s Children Panel. He represents clients based in the UK and Worldwide.
His experience extends to cases that include the death of a child, shaken baby allegations, non-accidental injuries, sexual abuse, Fabricated or Induced Illness (FII) in all levels of Court from the County Court to the High Court, Court of Appeal and Supreme Court.
Max has a particular interest in representing clients that are neurodiverse, vulnerable adults with learning difficulties or disabilities (including those where the Official Solicitor has become involved), foreign nationals, clients from the Romany Gypsy and Travelling communities.
Interested in learning more about communication differences and difficulties which can impact participation in legal proceedings? The Access Brief is a library of free bite-sized guides to everything from ADHD at court, to how an intermediary can work alongside an interpreter to support a court user’s understanding of proceedings.
For further information and queries, please contact events@communicourt.co.uk
We’re very grateful to our hosts (3PB), panellists, and guests for joining our discussion exploring the impact of recent family court judgments regarding intermediaries, upon family court users with communication needs.
Matiss Krumins of 3PB led a panel discussion with William Scrimshire (Communicourt), and the legal team who represented the mother in the case which gave rise to the January 2024 judgment of Mrs Justice Lieven (West Northamptonshire Council v KA & Ors), Robert Pettitt (Northampton Chambers) and Rupinder Jagdev (Duncan Lewis Solicitors).
The panel also considered the judgment of Mr Justice Williams (Re: X&Y (Intermediary: Practice and Procedure) [2024]), published this April, which furthered the guidance in Lieven J.
Below you can read about key topics explored in the session [click to jump]:
Click to view video highlights on YouTube.
The judgments of Lieven and Williams effectively ‘raise the threshold’ for intermediary assistance in family proceedings. Lieven identifies a lack of guidance regarding intermediary appointments in the family court in the Family Procedure Rules or Practice Directions, and imports the tests currently used in Criminal proceedings from R v Thomas (Dean).
You can read more about this judgment here. In very simple terms, Lieven sets out that:
Williams’ judgment further considers the points raised by Lieven, setting out that:
To open the event, Robert Pettitt, shared the background to West Northamptonshire Council v KA & Ors. In this case, Mr Pettitt represented the mother, who was Deaf and had mental health diagnoses which further impacted her participation in proceedings.
In court, the mother’s legal team were described as working flexibly and innovatively, to ensure she could participate effectively. This meant adapting seating in the courtroom, to ensure the six-person strong team of BSL interpreters, out-of-court interpreters, the Deaf intermediary, Mr Pettitt, and the mother could all communicate with each other.
Mr Pettitt noted that, without the assistance of the Deaf intermediary, “it would have been impossible for the mother to participate as fully as she did”. He also highlighted the very positive comments of the judge presiding over the case, regarding the manner in which the mother’s participation was supported by all of the professionals involved.
However, at the outset of the Final Hearing, the Deaf intermediary did not attend. The mother’s solicitor was unable to contact them for three days. The case was adjourned, as no replacement Deaf intermediary (a specialist role and a scarce resource in England and Wales) could be found.
The case then came to the attention of Mrs Justice Lieven, who sought to bring a wasted costs order against the Deaf intermediary. This was abandoned, as it became clear that the Deaf intermediary had not attended and had been impossible to contact due to wholly understandable reasons.
Mrs Justice Lieven then heard arguments regarding ‘whole trial direction’ for an intermediary during the hearing. This was an argument which counsel were not expecting to deal with, as the case had been listed in relation to the wasted costs order. No party submitted that the order for a Deaf intermediary to be appointed for the entirety of the hearing should be varied.
Lieven ultimately found “the appointment of a Deaf intermediary for M in this case is necessary for the entirety of the hearing”, due to the extent and complexity of the mother’s communication needs. As Mr Pettitt noted during his presentation, this case fell “fairly and squarely at the exceptionally rare end of the spectrum”.
Mr Pettitt commented that there is a fundamental practical problem if relying on the case outlined above as support for a “whole trial” intermediary. As this was an exceptional case, where the need for assistance was very, very high.
Communicourt MD, William Scrimshire, provided some information about the intermediary role ‘in practice’ in family proceedings.
He noted the Williams judgment highlighted that the role of the intermediary, as defined in the Family Procedure Rules, is very narrow (limited to facilitating the communication of questions and answers between the witness and the court during their evidence). The Williams judgment states “…the definition should necessarily be interpreted as meaning an intermediary can only perform those functions, it does give an indication of what their primary function is. Thus, assisting a party during a hearing to understand the evidence given by others or assisting a party to read papers and to give instructions is a function not identified in the rules and one which requires to be evidenced”.
William noted that the narrowness of this definition might be surprising to advocates who have worked alongside an intermediary in family proceedings to date, where the communication assistance provided to individuals is very much broader, extending to support to understand legal advice and give clear instructions in conferences, support to follow the thrust of proceedings in real time in hearings, the use of simple recaps and easy-read court notes to aid retention of key points outside of the courtroom, the monitoring of (and implementation of strategies to support) both attention and emotional regulation – and much more.
William also raised that many strategies intermediaries implement to support effective participation “behind the scenes” may go unseen by judges and the counsel of other parties. You can read more about this in our recent case study, ‘The Invisible Intermediary’. He explained that it is of concern that judges may not have a clear picture of the extent of the assistance skilled intermediaries provide, when making decisions about intermediary applications.
Matiss Krumins considered the difficulty of identifying when the assistance of an intermediary is ‘necessary’ rather than ‘desirable’, (the test set out in Williams’ judgment), noting that this can be a challenging line to draw.
Citing Munby LJ, Williams states that necessary falls “somewhere between indispensable on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand, having ‘the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.”
William Scrimshire shared that, whether you apply Lieven’s recommendation of a “compelling reason” or Williams’ test of “necessity”, when a Communicourt intermediary recommends “whole trial” intermediary assistance, it is because the assessor feels that an intermediary is necessary to ensure the effective participation of the individual. The “compelling reasons” (particularly the observed communication difficulties, their likely impact in legal proceedings, and the measures required to mitigate those impacts) are then documented in the intermediary report, which can be used by advocates and judges at applications for an intermediary.
Rupinder Jagdev noted there is “a lot of reluctance” among judges to grant cognitive assessments, preventing cases reaching the stage where an intermediary assessment is even considered.
This means that judges and advocates may have less information at hand when considering the support an individual requires to participate effectively in legal proceedings. This is particularly troubling in cases where an individual masks their difficulties. This is very common in care proceedings, where parents may (consciously or unconsciously) wish to conceal difficulties (among many other factors).
William Scrimshire raised a key difference between the ways Criminal and Family Courts fund intermediary assessments, pointing out that these are funded by Legal Aid in Criminal proceedings, and HMCTS in Family cases. He stated that this means family courts may effectively make a decision about intermediary necessity before an assessment is undertaken. Instead, taking that decision at the assessment application stage.
The cost of intermediaries is cited in Williams. During the panel discussion, Rupinder Jagdev raised the possible false economy of reducing intermediary assistance for Family Court users with communication needs. She raised the potential of solicitors being required to attend hearings to provide one-to-one assistance, and the possible delays which may be incurred when clients have not understood or been able to participate effectively.
Ms Jagdev also highlighted that, without an intermediary assisting during hearings (e.g., by providing whispered simplification and explanations), legal teams would likely require far longer breaks in proceedings, in order to properly explain key points to their client (among other tasks), to ensure they are able to follow the thrust and give informed instructions.
Although not raised during this panel, it may be helpful to note that Communicourt, Triangle, The Intermediary Cooperative and Aspire are HMCTS Appointed Intermediary Service (HAIS) providers, managed by the Ministry of Justice. HAIS fees are set by HMCTS and were not competed on as part of tender submissions.
Ms Jagdev additionally raised that, from her perspective, booking ‘evidence-only’ intermediaries may mean that the court user and intermediary have insufficient time to build rapport, attune to each other’s communication style, and therefore ensure that the best possible assistance is available during evidence.
Much of the discussion centred around whether or not the court can make sufficient adaptations to facilitate effective participation without the assistance of an intermediary, for example, through the implementation of regular breaks and through careful application of The Advocate’s Gateway (TAG) toolkits by counsel.
William Scrimshire acknowledged that there are many excellent barristers, well versed in TAG, who are skilled in tasks like simplifying legal concepts. He also noted that TAG (although most strongly focussed on the participation of witnesses in criminal proceedings) contains a wealth of helpful information. However, as attendee, Jane Hinton (The Intermediary Cooperative) pointed out, it is not realistic “to suggest that all professionals, whatever their role, should have the skills and abilities to build rapport and understand complex communication difficulties”.
William Scrimshire highlighted the extraordinary demand placed on counsel (in the absence of an intermediary) to perform their already very demanding primary role, while also monitoring attention and emotional regulation, simplifying vocabulary, requesting responsive adaptations, noting key points where their client indicated confusion for further recap in conference, rigorously checking understanding etc. Rupinder Jagdev highlighted that counsel and solicitors do not have backgrounds, nor specific training, in communication.
In relation to TAG, Robert Pettitt commented that this is often erroneously conceived of as a “panacea” for communication difficulties in legal proceedings, agreeing with William that implementing the required level of attuned communication assistance while running a case is not practical.
Participants also raised the inefficacy of many adaptations (beyond adherence to TAG) which the court can implement, particularly breaks.
Although the court can certainly schedule breaks, there are many cases in which a court user may decline them. Robert Pettitt commented that he had seen “good intermediaries” (when needed) inform the judge that, in fact, a break would aid the court user’s attention, emotional regulation or ability to continue effectively processing verbal information. A court user with a communication difficulty may decline adaptations which would facilitate their participation for a very wide range of reasons, from not wishing to appear to struggle in a court case regarding their ability to parent, to a wish to conclude proceedings as quickly as possible, or due to reduced insight into their needs and the strategies which would meet them.
Many other topics were explored over the course of this discussion, from the role of lay advocates, to the role of intermediaries when assisting litigants in person – far too many, in fact, to document in this post.
While recent judgments raise many concerns about access to support for family court users, it was exceedingly helpful to share thoughts and knowledge across professional divides. Communicourt are very grateful to 3PB for hosting this event, and to Matiss Krumins, Rupinder Jagdev and Robert Pettitt, for sharing their wealth of knowledge and helpful insights.
We hope that conversations on this topic will continue to take place across professionals involved with court users who have communication needs.
Interested in learning more about communication differences and difficulties which can impact participation in legal proceedings? The Access Brief is a library of free bite-sized guides to everything from ADHD at court, to how an intermediary can work alongside an interpreter to support a court user’s understanding of proceedings.
For further information and queries, please contact events@communicourt.co.uk
Every quarter, Communicourt staff gather in Birmingham for our Saturday Team Day. This is an opportunity to connect with colleagues, share practice, engage with CPD (Continued Professional Development) and celebrate our successes as an organisation.
This June, we celebrated the LOVE (Living Our Values Everyday) Awards. From amongst the 32 nominations made across Communicourt, we were delighted to present awards for Collaboration, Courage, Innovation, Diversity and Respect to Tegan, Katie, Sophie, Bradley, Millie and Cristina. You can read more about their winning nominations below*:
*identifying details have been changed.
Cristina assisted a court user who had a history of self-harm and suicide attempts. When Cristina observed a worrying issue in relation to this history during trial, Cristina immediately raised it with their barrister, who in turn, raised it with the Judge. The Judge called Cristina to the witness box to explain what she had seen and she shared her concerns about the situation. As a result, the Judge requested measures were taken to resolve the safety issue. Cristina demonstrated great courage and attention to detail by raising the issue in the first place. Without the courage demonstrated by Cristina, the service user could have been at great risk.
Sophie assessed a court user who had a diagnosis affecting their expressive abilities. A previous intermediary assessment had been attempted, but had been terminated due to the considerable difficulties experienced by the court user. Over two sessions, Sophie built a very strong rapport with the individual, and adapted the entire assessment process to allow them to communicate with her through emojis. Sophie worked so hard during the assessment to ensure she accurately understood the individual’s intended meaning via this alternative communication method. Ultimately, she was able to complete a full assessment, providing the court with valuable information about the person’s communication needs and recommendations to support their effective participation in proceedings.
Bradley has always been a really positive presence in our group-wide Neurodiversity Network project. In May he stepped up to host a drop-in session, which garnered lots of great sharing and discussion, and resulted in some great ideas to take the Neurodiversity Network forward. Hosting was a bit out of Bradley’s comfort zone and perhaps was a bit daunting when lots of unfamiliar faces from across six companies turned up! But he did a cracking job and should be very proud.
During proceedings, Millie made an unusual recommendation about a sensitive issue in a discreet way, which showed great respect for the court user, while still supporting their needs. The issue in question was affecting the court user’s attention and emotional regulation. Millie handled the situation very sensitively and professionally, by building rapport, gaining consent from the service user to discuss matters with counsel, and asking counsel to contact the judge via email (in order to discuss the matter discreetly). The judge was very open to the recommendations Millie raised and these were implemented. The intermediary did a great job at handling a sensitive issue professionally and respectfully.
Tegan and Katie were absolutely amazing in supporting an intermediary colleague through a difficult assessment, which involved issues relating to informed consent. The court user was unable to give informed consent to participate in the assessment (even when many different strategies to support their understanding were implemented), and a challenging situation then arose. Tegan provided reassurance and support over the phone. She then spoke to Katie, who took practical steps, liaising with others, to resolve the situation. The intermediary felt hugely supported by Tegan and Katie, and grateful for their help in the face of this tricky issue.
Disclaimer: The views expressed in this case study reflect the experiences and opinions of the author, and do not necessarily reflect the official policy or position of Communicourt.
A strange paradox about the intermediary role is that, in many (although not all) cases, the more effectively an intermediary supports someone with communication needs to participate in their legal proceedings, the less visible their work can be in the courtroom.
The better emotionally regulated a court user is, the better able they are to maintain their attention, to understand questions put to them in evidence, to understand legal concepts, the court process and the evidence of others – the more smoothly proceedings run, with fewer interventions required by the intermediary in the courtroom itself.
For the judge, who makes decisions regarding intermediary applications, the work of an intermediary is often only visible when breaks, adjustments and adaptations are requested in the courtroom. From conversations I have had, there is sometimes the perception that intermediaries do little more than request breaks.
This perception becomes especially significant when judges are considering intermediary applications, and need to decide whether sufficient adaptations can be made by the court, in the absence of an intermediary, to mitigate communication difficulties.
In many cases, much of the most impactful work of an intermediary is undertaken ‘behind the scenes’ in conference rooms and waiting areas, and may only be visible to the court user themselves and their legal team. Such work may include (but is certainly not limited to):
This is by no means an exhaustive list of the many ‘invisible intermediary’ tasks a judge may not be privy to in legal proceedings. In fact, as much of our work is person-centred and directly responds to an individual need or communication preference, it is challenging to fully catalogue the ‘unseen’ work which may take place to support effective participation in each, unique case.
To illustrate this principle, I have provided a case study below. (All names and identifying details have been changed to protect anonymity).
I attended a short hearing to assist a court user. At the last minute, the court user was permitted to attend remotely. I was not informed of this change and attended court in person. No alternative means of communication between myself and the court user had been discussed or arranged. Counsel did not raise the matter with me, so I needed to independently explore ways to assist the court user remotely.
I asked for the court user’s contact information from counsel, and called them to explore what communication devices they had and what could be used effectively by them during the hearing. I also used this call to develop rapport, to ensure they felt as comfortable as possible communicating with me.
I established that they would join via a tablet and felt able to text me during the hearing using their smartphone. I was aware from the intermediary report that they were able to read short, simple written information. We successfully trialled communicating via text prior to the hearing. During the pre-hearing call, I provided a simple outline of the structure of the hearing, and the key topics which would be raised (information I had obtained from counsel and sought permission to recap and check with their client).
At the outset of the hearing, before the judge entered the courtroom, the court user texted me, asking who was present. This reassured me that they were able to use this communication channel while joining remotely. I asked those in the courtroom to stand up and introduce themselves and their role via the link, and did so myself. I also thanked the court user for sending me this question, encouraging them to keep using this strategy to raise any difficulties or questions they may have.
When the judge entered and began the hearing, I sought permission to continue communicating with the court user via text. The judge raised concerns about my attendance, expressing that this was the type of hearing in which intermediary attendance was not appropriate, as I would be unable to be of assistance to a remote court user.
However, as the hearing progressed, unexpected, urgent issues which had not been explained in advance to the court user were raised. Throughout the hearing, I had relayed simple summaries of key points to the court user via text. They responded each time with their view on each matter in simple terms. This indicated that they had read my simplification and understood the thrust of the hearing. When this new matter arose, they expressed confusion via text, and I provided further, simplified explanation.
Once they had a clear understanding of this new matter, they raised a clear view, which I immediately shared with counsel. Counsel could then communicate the court user’s new instructions on the point in their submissions. This was a very important instruction in the context of the case, which changed the trajectory of the hearing, and the next steps in proceedings.
Without intermediary assistance in this case, albeit remote, it is my view that the court user would not have understood or followed the new, important matter which was raised. I take this view due to the confusion they expressed via text in response to my initial summary of the point.
In the event that the matter had been attended to and understood by the court user, I am also of the view that they would not have been able to independently raise their new, pivotal instructions with counsel. This is due to two factors:
The effectiveness of remote intermediary assistance (or otherwise) is a whole issue worthy of another blog post, but I believe this case study illustrates that crucial communication assistance can still be provided in this medium. I also believe it illustrates that a great deal of intermediary work, which can significantly support effective participation, is often ‘invisible’ to judges and other legal representatives.
I hope this blog goes some way towards unpacking some of the ‘unseen’ aspects of the intermediary role. This is simply one example, in my view, of the often ‘invisible support’ which prevents miscommunication, and which helps ensure the effective participation of court users with communication needs.
In my experience, and the experience of Communicourt colleagues I have spoken with, there are many, many other such examples of assistance provided ‘behind the scenes’. These examples will look different to my case study above, as intermediary strategies must be person-centred and are case dependent. But whatever those interventions may be, they are likely to be quietly making a considerable difference to the court user’s effective participation, and to the proceedings as a whole.
What have you been up to since leaving Communicourt?
I left Communicourt last September, and it has been a whirlwind since then! I moved from London to York, and jumped into two mini pupillages on the northeastern circuit. I then began my law conversion course, which has been eight months of intense study (with Christmas and Easter spent revising for exams). I have enjoyed the course greatly, but am looking forward to having some time off.
Tell us about your scholarship.
I am very grateful to have received a scholarship from Gray’s Inn (one of the four Inns of Court all barristers are a part of) for both my law conversion course and my upcoming bar course. Having the support of Gray’s Inn this past year has helped me financially, given me confidence in my career choice and ability, and allowed me access to all the Inn has to offer, such as mentoring schemes and advocacy development opportunities. I wouldn’t be able to study the bar course full time this coming September without Gray’s Inn continued support through the bar course scholarship.
What’s next for you?
I’m spending the next couple of weeks in court in London and Leeds on mini pupillages, and then I’ll be taking some time off over the summer before starting the Bar Course in September. I’m really looking forward to getting stuck into the advocacy side of things on the Bar Course.
What are your current career goals?
The areas of law I am most interested in at the moment are crime and family. They are areas I predominantly worked in as an intermediary, and areas I am excited by the prospect of working in as legal counsel. In particular, I am drawn to the importance of client care in both areas, working with people going through a very difficult time, and the frequent opportunities for courtroom advocacy. Depending on the case, there can also be a degree of overlap between the areas.
Did you learn anything from your time as an intermediary, which has supported your career development?
An invaluable skill I learned as an intermediary was communicating with a wide range of people. I would spend a morning presenting a ground rules hearing to a courtroom, justifying and expanding on special measures to a Judge and barristers from the witness box. Then, I would spend the rest of the day breaking down complex court information and expert evidence in order to support a service user with difficulties retaining information. This has further developed my confidence in public speaking, and my creativity in breaking down information – I made use of all sorts from whiteboard drawings to post-it note diagrams.
I also learned how to manage my time effectively, juggling both intermediary assessments and writing up reports with trials and hearings, while travelling around the country – an essential skill to take into the profession of a barrister!
Why did you choose to work as an intermediary?
I was drawn to the intermediary role because of the opportunity it gave me to be in a courtroom on a daily basis in my own capacity as a communication specialist, supporting those with additional needs who would otherwise struggle to engage in the process. Throughout university, I had tutored English to students with learning difficulties and so I had already adopted various strategies to support people with understanding and retention. I saw the intermediary role as an opportunity to continue doing this, while also being immersed in a legal environment.
Has your view of the intermediary role changed, since continuing your legal studies?
It has been interesting attending mini pupillages and being able to watch an intermediary in action – something I rarely got to do while working as an intermediary. I suppose my view of the profession has solidified my feeling that having an intermediary can really support justice being achieved, by allowing people to fully engage in court proceedings involving them. In particular, I feel it is essential for barristers to have vulnerable witness training from as early a stage as possible, both for times when an intermediary is not available or required and for barristers to work most effectively with intermediaries.
The reality is that many more people would benefit from intermediaries than are able to have them, and so ensuring barristers are equipped in how to support their clients who may have communication difficulties is imperative.
Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs.
We are delighted to be sponsoring this year’s Legal Aid Lawyer of the Year Awards, otherwise known as the LALYs.
Communicourt is sponsoring the ‘Disability Rights’ category and nominations are now open.
This will be the 22nd Legal Aid Lawyer of the Year awards and nominations will close on 22 April. This is the only annual event solely dedicated to celebrating the work of grassroots social justice lawyers.
This year sees the addition of new award categories, new sponsors, and a distinctive new logo for this well-supported event. Winners in the 12 award categories will be announced at a ceremony in central London on 5 July in front of a 500-plus strong audience.
Communicourt Managing Director Billy Scrimshire said: “I am thrilled that Communicourt is a category sponsor for such an amazing event. I can think of no better way to show our support for the fantastic work of legal aid practitioners, and I am really looking forward to seeing the submissions.”
The categories are:
To find out how to make a nomination, please visit the LALY website.
Communicourt is the sponsor for the Criminal Law category in this year’s Yorkshire Legal Awards.
The Awards is celebrating its 25th anniversary this year and the awards ceremony will be held in Leeds in October. Nominations have now opened for the awards and the deadline for submissions is 19 July.
The Yorkshire Legal Awards brings together the region’s legal community to recognise and celebrate its many achievements.
This is the first time Communicourt has been a sponsor for this award.
Managing Director Billy Scrimshire said: “Our court intermediaries work with many legal professionals in and around Yorkshire, and we see first hand how vital their work is. It is a pleasure to be able to sponsor a category at these awards.”
More information about the rules of entry for these awards is available on the Yorkshire Legal Awards 2024 website.
This month we hosted Communicourt’s first ever conference. Held in partnership with UK legal reform charity JUSTICE, the Access to Justice Conference 2023 took place in Leeds and online, with attendees including legal practitioners, law students, clinical psychologists, ISVAs (independent sexual violence advisors) and representatives from many other connected professions.
Now that the dust has settled, we’d like to reflect on some of the most important messages and discussions generated by the conference – and give a big thank you to all of our guests and speakers. The whole Communicourt team is extremely grateful to have been able to take part in such a multidisciplinary conversation about making justice more accessible – and we’re very pleased to have been able to share a range of perspectives on this multifaceted issue.
Although the majority of our speakers focussed on criminal proceedings, many of the ideas they shared are also applicable in the family courts and other proceedings. Though it wasn’t possible to explore every factor which may result in barriers to participation (on this occasion), we hope conversations around diagnoses like autism, learning disability and trauma, offered a window into some key areas for improvement – which stand to benefit all court users, including those with other accessibility requirements.
Full recordings and resources from the conference will be shared with all attendees by the end of November.
We are incredibly grateful to broadcaster, naturalist and environmental campaigner, Chris Packham, who very generously shared his experiences of attending court as an autistic claimant. Chris’ clip was played at the outset of the event, setting the stage for broader discussions about inclusion in legal proceedings.
Chris eloquently reflected on the importance of predictability and foreknowledge for autistic people attending court. He explained that familiarisation with the hearing process and environment could be very important steps for court users, assisting them to manage difficult emotions (such as anxiety) more effectively, and allowing them to focus on the matter at hand.
Speaking about the court environment itself, Chris showed us the courtroom through his individual autistic lens, commenting that it was “a terrible cluttered jumble… The visual complexity of that environment was challenging for a while. Lots of hanging chandeliers, some with bulbs that were working, some with bulbs that weren’t…”, and remarking that it took him around two hours to feel that he was not distracted by the complex visual environment. He explained, “If I’m managing my autism, I’m not focusing on what I need to be focusing on”.
Chris also raised the enduring issue of audibility in legal proceedings – a matter which affects all court users, regardless of neurodivergence. He commented, “It was very difficult to hear. There were suspended microphones, but they didn’t seem to amplify the voices of the barristers at all. […] because we were sat behind the barristers who were facing the judge […] a number of people were struggling to hear […] whether you’re neurodiverse or not, that’s really frustrating. You’ve got to be able to hear that stuff”.
In summing up, Chris shared what he described as very “simple”, common sense suggestions for making the courts more accessible for autistic people – particularly sharing clear, detailed information about the hearing process and environment in advance. He also suggested the provision of videos showing the specific courtroom the individual would attend, to allow them to familiarise themselves with the setting in advance.
Although related resources do exist (like the video guide for witnesses attending court below, created by the Ministry of Justice), most videos of this type depict a generic courtroom in optimum condition. This does not often reflect the realities of most courtrooms and does not offer insight into the specific setting the autistic court user will attend.
In addition, many such videos are filmed for use by witnesses, rather than by other participants in proceedings. In this example, complex vocabulary like “specific” and “prosecutorial agency” is used, which would not be easily understood by all court users. Non-literal language (“testing the strength of the prosecution”) is also used, which may not be easily understood by some autistic court users.
Although Chris modestly described his suggestions as simple, questioning whether they would be of any help, his common-sense ideas are important – and, in fact, quite challenging to implement in the most effective way. These are certainly suggestions worth further exploration.
Opening the speaker sessions, HHJ Neil Clark provided a far-reaching overview of our legal system’s continuing journey towards improved accessibility. He acknowledged that change is about gradual evolution, rather than dramatic shifts, pointing to how far our legal system has come over the past 150 years. He commented: “It wasn’t until 1851 that the defendant in a civil case could give [any] evidence in their own defence. It wasn’t until 1898 and the passing of the Criminal Evidence Act, that the first defendant was able to give evidence under oath at all”.
His Honour also offered a glimpse into his particular interest in accessible justice, explaining that, when his mother developed a degenerative condition, he began to consider whether “bright people like her, with communication needs” would have real access to justice. He commented, “When I went to court and saw someone giving evidence, I’d think, I wonder how my mum would feel about doing that?”.
HHJ Clark also reflected upon the meaning of ‘best evidence’, noting that “achieving best evidence doesn’t just mean from the perspective of the prosecution” and asked, “In criminal court, why is it that we focus so much on cross-examination?”.
The next speaker tackled the topic of person-centred approaches to special measures, with a particular focus on trauma-informed practice and working with young court users. Kama Melly KC provided a great deal of insight into the realities of legal proceedings for court users with vulnerabilities, and for those representing them. In her experience-driven, pragmatic presentation, she shared many of the overlooked barriers to effective participation which go unaddressed in legal proceedings – and many of the small adjustments which can be made to assist (but are all-too-rarely implemented).
In one, striking example (which will not be at all unfamiliar to intermediaries), Kama stated: “I watched [a] child give evidence for hours without breaks, until she agreed with every single question. She was asked frequently if she wanted a break by the judge. She didn’t want a break, she wanted to get out, so she said ‘no’ every time”. She added, “This wasn’t about ensuring the defendant had a fair trial. It was about putting the case and getting to the final objective”.
While the Youth Justice & Criminal Evidence Act (1999) set out a number of broad special measures (such as video-link evidence and intermediary assistance), Kama’s presentation highlights the myriad ‘small barriers’ which prevent court users from participating in legal proceedings fairly, which are very often overlooked and brushed aside due to factors like time constraints.
Attempting to address these ‘small’ (but very significant) barriers, therefore, falls to individual legal practitioners and, in some cases, intermediaries, who have first-hand insight into the communication needs of the court users they work with. However, under considerable professional pressure, not all advocates have the time or resources to ensure such barriers are addressed. Kama shared some examples from her own practice, which illustrate the deep thoughtfulness of approach which is often required to support a vulnerable court user.
She explained that she often chooses to ‘give words’ to her clients, which they can use to advocate for themselves during cross-examination. For example, telling them that, if they feel pressured to give a binary ‘yes’ or ‘no’ answer in the witness box, they should say something like, “I’m sorry, I can’t explain that in one word”, which will prompt the judge to allow them to provide a more nuanced response.
Kama also explained her practice with regards to witness statements: “Everyone who reads their witness statement thinks they have taken it all in and they put it to one side. I annoy police officers. I make them read them out to the witness.”
Although intermediaries frequently work alongside excellent, intuitive and client-focussed barristers, the attuned practice outlined by Kama during her presentation is very uncommon. Very few legal practitioners, no matter how well-intentioned, have the bandwidth to ensure their practice is truly person-centred and responds to the specific needs of the client on this level.
Speaking later, during the panel discussion, Kama stated that trauma-informed questioning will “be the next big training we all engage with [as legal practitioners]”, also noting that updating training would be very beneficial for more senior legal practitioners, whose knowledge, awareness and skillset may not be in-step with current best practice around trauma.
Drawing on both his lived experience of care, drug addiction and the youth justice system, and his extensive experience of working in youth justice, Andi Brierley addressed how we, as professionals, engage with young people caught up in the criminal justice system. His presentation highlighted that, although treated as discrete labels, terms like “perpetrator”, “defendant”, “criminal”, “witness” and “victim” are often overlapping. He spoke about the impact of adverse childhood experiences and the common pathways into the criminal justice system, which can lead from disadvantage.
Andi encouraged the audience to be more intentional in their communication with young defendants and offenders, stating, “When we come into contact with those children [who have not had attuned care], Every interaction is an intervention”, adding, “Change the word engagement to connection. Switch from ‘they’re not engaging’ to ‘we’re not connecting’. Relationships are reciprocal, you’ve got responsibility for that, too”.
Researcher and senior lecturer, Dr Katie Maras’ presentation explored a wide range of topics relating to the experiences of autistic people subject to police questioning and cross-examination. Her talk included information about memory differences in autistic people, the most and least helpful questioning approaches, and relevant studies (like Bagnell et al, 2023, which have found that “truth-telling autistic mock-suspects reported fewer extricating details that would support their innocence than non-autistic mock-suspects”).
Katie then considered the barriers an autistic defendant may face at court, and shared her project regarding the effectiveness of special measures in cases involving autistic people. This project is currently examining important questions, such as: “What effect do Special Measures have on autistic witnesses’ and defendants’ experiences and ability to provide their ‘best evidence’ and are further measures needed?” and “What is the effect of special measures, diagnosis disclosure and juror instructions on how autistic individuals are perceived by jurors and judges?”.
Katie also invited legal professionals with experience of working with autistic people in court or tribunals to participate in her current project, which still requires participants. Participants can undertake an online questionnaire or take part in an approximately one-hour remote interview (those who take part will receive a £10 shopping voucher). Complete the questionnaire here: https://uniofbath.questionpro.eu/t/AB3uyQnZB3vi1j or contact autismincourt@bath.ac.uk for more information.
Concluding the speaker sessions, University of Leeds PhD student, Edmore, shared his research into “The court experiences of defendants with mental health conditions or learning disabilities in England”. Although drawing from a small sample, Edmore’s research uncovered some valuable insights into the court experiences of his participants.
The quotes included in his presentation vividly shared these experiences, and the barriers these individuals faced to participation. For example, one interviewee explained, “I didn’t understand what was happening. It was like I was in a daze; like I didn’t really understand what … what the questions were asking, and like what court is like, you know, I guess, how to get in … I didn’t understand like what the judge is saying or any questions that they are asking me, to be fair. It was just mumbo jumbo. It is just like in a different language which, you know, I really didn’t understand.”
Another participant reported, “I was unsure whether I was acquitted, that is, a formal declaration that I was not guilty of the charges put in front of me. He (the solicitor) said ‘No, I wasn’t acquitted. The case was dropped.’ So … that … that only came … that was only explained to me weeks afterwards…”,
Concluding his presentation, Edmore stated, “There has been very little empirical research on the effectiveness of the support measures that courts are expected to rely on in the absence of intermediary assistance – and defendants with cognitive impairments’ views and opinions of that experience. The findings of this research suggest that those who received the support found it beneficial, while those who did not receive this support found it difficult to follow and understand what was happening during court proceedings”.
The entire Communicourt team would like to thank each attendee and speaker for their time, knowledge, and engagement with the important topic of access to justice. We sincerely hope that the event has generated discussions about how we can all work to further improve the accessibility of the justice system.
As His Honour Judge Clark points out, these improvements may be slow and incremental, which makes continuing these conversations – and keeping accessibility firmly in mind in our daily practice – extremely important. We are particularly inspired by Kama Melly KC’s identification of the myriad ‘smaller’ barriers and accommodations, which can make a big difference to an individual’s participation in legal proceedings (provided they are implemented in an attuned way). There is no one-size-fits-all approach. However, if those working alongside court users can more easily identify barriers and continue to share our practice, we can slowly make positive change on an individual level.
Interested in learning more about communication differences and difficulties which can impact participation in legal proceedings? The Access Brief is a library of free bite-sized guides to everything from ADHD at court, to how an intermediary can work alongside an interpreter to support a court user’s understanding of proceedings.
For further information and queries, please contact events@communicourt.co.uk
Intermediary & Team Leader, Florence, recently used one of her Volunteering Days to introduce the intermediary role to social work apprentice students at Liverpool John Moores University.
Florence shared a range of strategies to support service users with communication needs during legal proceedings, and gained a lot of insight from a social workers’ perspective, too. Including a fresh perspective on explaining concepts surrounding Parental Responsibility and Threshold to respondents in care proceedings.
In the afternoon, the class attended a talk given by a judge at court. Florence found it very surreal to be in front of a judge with no laptop, no person to explain things to, with the opportunity just to listen. She even asked a question without saying ‘Your Honour’ first!
Here are some of the things the judge shared with the social work students, which really got Florence thinking:
