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

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

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

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

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

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

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

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

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

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

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

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

I think this can be looked at in two stages:

Pre-Fact Finding Hearing:

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

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

During the Fact-Finding Hearing:

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

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

What outcomes do you hope your intervention will have?

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

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

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

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

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

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

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

Do skills in this area vary between legal professionals?

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

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

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

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

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

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

I fundamentally disagree with this view.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

View Max’s full profile here

Read more

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

Interested in learning more about communication differences and difficulties which can impact participation in legal proceedings? The Access Brief is a library of free bite-sized guides to everything from ADHD at court, to how an intermediary can work alongside an interpreter to support a court user’s understanding of proceedings.

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