Post Lieven J: 3PB hosts Communicourt panel discussion

Robert Pettitt, Rupinder Jagdev, William Scrimshire and MAtiss Krumins during the panel discussion

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]:

Video highlights

Click to view video highlights on YouTube.

The judgments in a nutshell

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:

  • Intermediaries should only be appointed if there are “compelling” reasons to do so.
  • 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. 

Williams’ judgment further considers the points raised by Lieven, setting out that:

  • The test for intermediary use should be whether this is “necessary” (not simply desirable), to ensure a fair trial.
  • 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.
  • “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.”

The case behind the judgment

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.

The intermediary role

Close up of intermediary using a visual aid on a whiteboard, sitting next to a court user who is using a stress ball.

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.

Panel discussion

Necessary vs. desirable

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.

Fewer expert reports and intermediary assessments

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.

False economy

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.

Evidence only and rapport building

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.

Adjustments in lieu of an intermediary

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.

Close up of hands - one person is handing a card which says "It's going too fast" to an intermediary.

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.

In closing

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.

Read more

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