Tag: Family court

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

A new Court of Appeal judgment (Re M (A Child: Intermediaries) [2025] EWCA Civ 440) restores the “test of necessity” as the only test which should be applied when considering intermediary applications in Family proceedings.

The new judgment removes additional tests, for example of “exceptionality”, which came into use over the past year following judgments provided by Mrs Justice Lieven and Mr Justice Williams, and practice guidance from the President of the Family Division.

We are very pleased that the mother in this case will now receive the intermediary assistance recommended as necessary by a psychologist and our assessor.

Over the past year, many solicitors and advocates have reported to us that it has been more challenging to gain approval for intermediary assistance in cases similar to RE: M, where communication needs are very likely to adversely impact participation and communication demands are high. This has been a source of considerable concern. We are extremely grateful to all who assisted in bringing this matter before the Court of Appeal, clarifying a number of important issues affecting vulnerable people’s access to the careful consideration and adjustments needed to ensure their effective participation.

The judgment: digested

Below you will find Communicourt’s digest of the Court of Appeal judgment, including some action points for both intermediaries and legal practitioners, and some areas for further reflection and discussion.

Please note: This post is intended to provide informal guidance and the views of Communicourt at the time of publication. If you have questions regarding the instruction of an intermediary in a specific case, the matter should always be discussed directly with the presiding judge. If you require further information regarding our intermediary service, please contact admin@communicourt.co.uk or telephone: 0121 663 0931.

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

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

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

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

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

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

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

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

b) put their views to the court;

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

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

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

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

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

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

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

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

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

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

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

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

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

Reflection: Moving towards improved information-sharing and active collaboration

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

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

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

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

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

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

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

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

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


Further reading:

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


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

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

A judgment providing further consideration of the use of intermediaries in family proceedings was published on 18.04.2024. The [2024] EWHC 906 (Fam) judgment of the Honourable Mr Justice Williams, follows the recent judgment of Mrs Justice Lieven, which effectively imported guidance regarding the use of intermediaries in criminal proceedings into family cases (West Northamptonshire Council v KA & Ors [2024]).

Below you will find a quick guide to key points in Mr Justice William’s judgment, and some practical considerations which may arise in response. You can access our related guide to the judgment of Mrs Justice Lieven here.

Please note: This post is intended to provide informal guidance and the views of Communicourt at the time of publication. If you have questions regarding the instruction of an intermediary in a specific case, the matter should always be discussed directly with the presiding judge. If you require further information regarding our intermediary service, please contact admin@communicourt.co.uk or telephone: 0121 663 0931.

Can I still request an intermediary to assist in family proceedings?

Yes, applications for intermediary assistance at all stages of family proceedings can still be made and approved.

Recent judgments do not prevent a judge from granting intermediary assistance throughout (or at specific stages of) proceedings, provided it is “necessary to ensure that a ‘fair hearing’ is achieved either in relation to […] a party’s participation…” (see below).

When an intermediary report recommends intermediary assistance at any stage of proceedings, it is because the assessor deems this is necessary to ensure effective participation (as adjustments which can be implemented by court and counsel will not, in their view, be sufficient).

An intermediary assessment will consider the individual’s whole communication profile in detail, exploring:

  • The impact any observed difficulties may have on participation at all stages.
  • The effectiveness of strategies which can be implemented to overcome any likely barriers to participation.
  • Whether any effective strategies can reasonably be implemented by the court, or whether the individual will require the assistance of an intermediary to support their participation.  

Information highly relevant to the test of necessity set out by Williams is included in the intermediary report, which can assist the court in making an informed decision regarding intermediary allocation. This, in our view, makes obtaining an intermediary assessment of great importance when working with a client who may have communication needs.  

Background to the judgment

Mr Justice Williams considered a respondent’s intermediary application in care proceedings, applying the guidance of Mrs Justice Lieven (and therefore the parameters of R v Thomas (Dean)) to do so.

  • Our guide to these criminal guidelines relating to intermediary applications (which are now to be applied in family proceedings) can be found here.

In this case, the respondent’s legal team used a Part 25 application to apply for an intermediary (which was not the correct procedure – instead intermediary applications should be made as a “case management direction by the court of a similar nature to the direction for the appointment of an interpreter”.)

The respondent was reported to have a diagnosis of ADHD, but no evidence was provided to support this, nor the necessity of intermediary assistance.

The application was adjourned, with Mr Justice Williams stating: “The Mother will file the ADHD diagnosis she says she has received. It seems likely a psychiatric expert will be authorised to assess the mother given these issues and her long-term problems with drug and alcohol misuse. The mother’s team and this court will, should evidence emerge which suggests the necessity for participation directions including an intermediary, keep the issue under review”.

Relevance to intermediary applications

Mr Justice Williams sets out the reasons for this judgment as follows:

“I am delivering this judgment because this case seems to me to illustrate some of the issues which are emerging in the Family Courts in relation to the use of intermediaries. An intermediary can be an essential component in what the court provides to a party or witness to enable them to participate fairly in proceedings or in giving their best evidence and my own experience demonstrates their value in appropriate cases. The issue however is where is it appropriate to direct the use of an intermediary as they are not to be used as some sort of safety net or security blanket by lawyers or the courts but only where their use is necessary. Like other court funded resources (whether judicial or otherwise) they are a limited resource and a resource which comes with significant costs. Their use is governed by the procedural regime established in FPR 2010 r.3A and PD3AA.”

We will return to key issues (such as necessity, and the cost of intermediaries) in the table below. Just to make a quick note about intermediaries as a “limited resource”:

  • Communicourt are one of several Managed and Approved Service Providers (MASPs) under the HMCTS HAIS framework. There are also many Approved Service Providers (ASPs) of intermediary services in England and Wales. As the largest provider of intermediary services on the framework, Communicourt has around 100 full time, contracted intermediaries across England and Wales, providing national coverage. Since the implementation of the HAIS framework in 2022, we have declined less than 0.1% of bookings.

In the table below, we have identified some key points from the judgment and some points we believe are important considerations in relation to intermediary applications:

Key points from the judgmentPoints to consider
FPR r3A sets out the role of an intermediary in “very narrow” terms.

Mr Justice Williams highlights that the role of an intermediary, beyond the FPR definition (which relates to evidence only), requires further evidencing.		The role of an intermediary as referenced by Mr Justice Williams is, indeed, exceedingly narrow – Family Procedure Rules 3A.1 describes the “function” of an intermediary only in relation to supporting the communication of questions and answers during a court users’ evidence.
 
However, Part 3A goes onto set out a wider scope for the intermediary role, recommending that “the court must consider whether a party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions” (FPR 3A.4(1), and that the measures available to court includes both “(d) provide for a party or witness to participate in proceedings with the assistance of an intermediary” and “(e) provide for a party or witness to be questioned in court with the assistance of an intermediary”.

A wider scope is also set out in the Equal Treatment Bench Book, which much more closely reflects recent intermediary practice in Family Court, observing that a “vulnerable person is likely to need help not only during hearings but also away from court for the purpose of giving instructions and considering advice and options”.

Mr Justice Williams notes the “…the definition [in FRR 3A] should [not] necessarily be interpreted as meaning an intermediary can only perform those functions…”.

In current practice, intermediaries typically undertake a far wider range of duties to support a court user’s participation in family proceedings, doing so through a wide range of strategies tailored to the individual’s needs, from whispered simplifications in the courtroom, to explanation of key legal concepts using visual aids in conferences. Other aspects of the role can include checking understanding, and monitoring attention and emotional regulation, making recommendations in real time to mitigate these difficulties when they impact participation.

Communicourt intermediary reports clearly set out recommended strategies and adaptations which will support an individual’s participation, including measures which can be implemented by the court and strategies which, through practical necessity, will require implementation by an intermediary.

These measures, in many cases, go beyond communicating questions and answers during evidence, instead including strategies to support the individual to follow the thrust of proceedings (e.g., key legal arguments, judgments, expert evidence etc.) in order to ensure effective participation throughout.

At Ground Rules Hearings, it may now be necessary to have a more detailed discussion about the role of the intermediary in proceedings (particularly beyond your client’s evidence). The intermediary report will detail any observed communication needs and the likely impact on their effective participation. We recommend reviewing the intermediary report in detail and having a discussion with the assigned intermediary prior to Ground Rules (they will be able to answer any questions about which adaptations or types of intermediary assistance will be required at different stages).
The test for whether it is “necessary to make the participation direction” in relation to an intermediary application, to ensure a fair trial, is considered.

Key points for the court to consider include those set out in FPR 3A.7(a)-(m):

– Whether the party or witness suffers from a mental disorder or otherwise has a significant impairment of intelligence or social functioning

– The nature and extent of information before the court

– Whether a matter is contentious

– Any characteristic of the party or witness which is relevant

– The measures available to the court

– The cost		Whether an intermediary is necessary to ensure fair process is an important matter for the presiding judge. There will be many factors to consider, which the assessing intermediary may not provided with information about (for example, whether the matter is contentious or whether the case will involve complex expert evidence).

As such, it is for the judge to make a holistic decision regarding the necessity of intermediary assistance, drawing on all available information in the case.

An intermediary report, therefore, is a very useful resource which can support this holistic decision-making process. While the intermediary may not have information regarding the likely content of the case, the judge may not have experience of communicating directly with the individual, nor granular insight into their likely communication needs in the courtroom.

A note on costs: Communicourt, Triangle, The Intermediary Cooperative and Aspire are HMCTS Appointed Intermediary Service (HAIS) providers, managed by the Ministry of Justice. HAIS fees are set by HMCTS and were not competed on as part of tender submissions.

As noted by Williams, intermediary assistance is a valuable resource which does incur additional costs. However, there are many cases in which a “whole trial” direction for an intermediary may, in fact, save costs.

There are a range of reasons why denying an intermediary application may prove to be ‘false economy’, from the costs of solicitor attendance in place of an intermediary, to delays caused by counsel requiring much longer breaks to explain and recap key information (which can often be undertaken by an intermediary in the courtroom) before taking instructions. The additional costs and delays caused by appeals and reopening hearings (as in this recent case), should also be considered.

Unpredictable proceedings: It is also important to consider that family proceedings are often lengthy and unpredictable. For example, expert witnesses can be required at the last minute, or a party’s position may change on the morning of a Final Hearing. Court users with communication needs may have to make important, informed decisions which require them to understand emotive, complex and abstract information, under considerable pressure.

To avoid delays to cases, we recommend that, if there are any concerns about a court user’s communication, a referral is made for an intermediary assessment at the earliest opportunity (assessment wait times are approximately 1-2 weeks and reports are completed within 5 working days. Urgent assessments can typically be accommodated much sooner and are regularly completed on the next working day). This means that, if case content changes and an intermediary is required at short notice, they can be allocated as soon as possible.
Other adjustments the court can make should be considered when considering whether an intermediary is a “necessary” measure. Only if these adjustments will not ensure the court user cannot participate fairly should an intermediary be approved.

Measures the court should consider include the following from PD3 AA:

– Adapting the structure and the timing of the hearing

– Adapting the formality of language to be used in the court

– Separate court entrances and waiting areas for different parties

– The form of a witness’ evidence (for example, through an alternative communication medium)

– Preventing repetition of questions by multiple advocates

– Agreement of questions or topics to be put to the witness in advance

– Pooling of questions to be asked by one advocate or the judge

– Any other alternative arrangements for the individual’s evidence

– Whether any previous evidence given by the witness can be used in place of live evidence

– Adoption by advocates of the techniques set out in The Advocate’s Gateway toolkits.		In 22% of Communicourt intermediary assessments (since the HAIS framework began in April 2022), Communicourt intermediaries do not recommend intermediary assistance.

This may be because the individual’s needs are so significant that intermediary assistance will not meaningfully support their effective participation, or because the court can implement adaptations without an intermediary to ensure the individual will be able to participate effectively.

The recommendations the court can implement independently are clearly documented in our reports, when we do not recommend an intermediary.

When an intermediary is recommended following an intermediary assessment, it is because the assessing intermediary has observed communication difficulties which cannot be accommodated without the assistance of the intermediary, and has found that strategies which can be implemented by the intermediary will support effective participation.

While there are many skilled advocates, well-versed in The Advocate’s Gateway (TAG), and adept at tasks like simplifying information and checking understanding, it is important to consider the very considerable demands upon counsel.

For example, in hearings, counsel will likely have their back to their client, taking a careful note of proceedings, making submissions, putting questions to a witness – this makes it exceptionally challenging to implement many strategies which may be required to support their client’s participation, from closely monitoring attention and emotional regulation (and implementing strategies to support in these areas when they impact participation), to answering their client’s questions, taking note of any matters they raise which require further discussion (which the client themselves may later forget to address in conference), simplifying and summarising key points which arise, and using visual aids (alongside other strategies) to ensure their client can follow the thrust of proceedings.

This is by no means an exhaustive list of the strategies an intermediary can implement in the courtroom itself, but perhaps illustrates a few interventions the court, practically, cannot make without intermediary assistance.

The same may also be true in the conference room, where counsel may have very limited time to undertake their primary role in proceedings, while also simplifying and recapping key points, checking understanding, and putting in place a range of other strategies to support their client’s participation.

It is important to take a realistic view of what the court can and cannot implement. For example, in the experience of our intermediaries, the suggested measure of “adapting the formality of language to be used in the court”, is unlikely to be consistently or effectively implemented, to ensure the individual can reliably follow key points.

For instance, there may be complex points which the court and advocates are unable to simplify in real time. Equally, it is unlikely that all legal professionals in the courtroom will have a clear picture of the individual’s specific receptive vocabulary and receptive language skills, preventing them from adapting their language effectively, in real time, while also undertaking their primary roles in the courtroom.
The “spectrum of vulnerability” is considered:

“Only towards the far end of the spectrum will be the cases where an intermediary is necessary for the giving of evidence. Only at the very far end will be cases where an intermediary is required for the whole of a hearing and only in the very rarest cases is an intermediary likely to be necessary to enable the party to give instructions in advance of a hearing. Of course, every case will ultimately depend on the evidence before the court, and it is for the experienced family judges to determine what is required to make the process fair.”		This section of Mr Justice William’s judgement appears to further ‘unpack’ the “exceptionally rare” use of intermediaries recommended in Mrs Justice Lieven’s judgment.

We agree that communication needs exist on a spectrum. We also agree that the necessity of intermediary assistance should be determined by the presiding judge, with a clear overview of the service user’s needs, the case and the evidence.

An intermediary assessment is, therefore, an important tool that can assist judges in making a holistic decision regarding whether an intermediary is necessary to support effective participation and, if so, at what stages. We strongly advise that an intermediary assessment is sought, to ensure that your client’s communication needs are considered in detail, and relevant adaptations at different stages are considered by the court.

In terms of “whole trial” directions for an intermediary, it’s important to consider the impact of earlier intermediary assistance upon an individual’s effective participation, and upon proceedings as a whole.

In legal conferences, for example, intermediary assistance can significantly improve a court user’s understanding of the matters and evidence in a case – and the decisions they must make, enabling them to give informed instructions. Support at this stage can aid the smooth-running of a case, by ensuring the individual’s informed position is communicated clearly to their legal representatives and the court – minimising the likelihood of later changes in position, as well as difficulties or misunderstandings arising between legal teams and their vulnerable clients.

Similarly, intermediary support during hearings (not just when the individual gives evidence) often enables them to “follow the thrust” of proceedings and therefore participate effectively at all stages.
Evidence is required to establish that an intermediary is necessary. This may be (but is not limited to):

– An expert report permitted by the court

– A court user’s medical history

– Evidence from the court user’s legal team, demonstrating that “…even by deployment of all their skills as a solicitor and counsel using the Advocates Toolkits, they do not consider the party or witness can participate fairly without an intermediary”.		Legal professionals have reported that it is increasingly challenging to gain approval for expert reports and intermediary assessments. This includes cognitive assessments, which may include a recommendation for an intermediary assessment (therefore making it more challenging to support applications for intermediary assessments).

In Criminal proceedings, intermediary assessments are generally funded through Legal Aid Prior Authority, allowing legal teams to obtain intermediary reports, which can then be considered by the court in full. In Family proceedings, these assessments are funded by HMCTS, requiring approval by a judge.

It may, therefore, be the case that a judge in Family proceedings effectively takes a view regarding the necessity of intermediary assistance at the ‘application for assessment stage’, without access to reports which provide key information about the matters highlighted in Williams’ judgment (the individual’s communication profile, the likely impact on participation, the strategies required to support participation, and whether or not these can be realistically implemented by the court).

It is also important to consider that your client’s medical records may not contain information about possible communication needs or diagnoses likely to impact their participation in proceedings (due to lack of access to services, masking of difficulties, underdiagnosis etc). Many Communicourt service users do not have formal diagnoses, but present with a wide range of marked communication needs, resulting in them facing barriers to participation in legal proceedings.  


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

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

In January 2024, a new High Court Judgment from Mrs Justice Lieven was published, including guidance on intermediary use in family proceedings (West Northamptonshire Council v KA & Ors [2024]). The case concerned a mother who required a deaf intermediary (a highly specialised service performed by precious few professionals currently working in England & Wales, and not offered by Communicourt). The case was subject to considerable delays due to non-availability of a suitable intermediary.

Below you will find a quick guide to what has changed, and extra information about some practical considerations which may arise in response.

Please note: This post is intended to provide informal guidance and the views of Communicourt at the time of publication. If you have questions regarding the instruction of an intermediary in a specific case, the matter should always be discussed directly with the presiding judge. If you require further information regarding our intermediary service, please contact admin@communicourt.co.uk or telephone: 0121 663 0931.

Update: A further judgment relating to the use of intermediaries in family proceedings was handed down by Mr Justice Williams in April 2024. You can learn more about this further judgment here.

Can I still request an intermediary to assist in family court?

Yes, applications for intermediary assistance at all stages of family proceedings can still be made and approved.

The new guidance does not prevent a judge from granting intermediary assistance throughout proceedings, if there are “compelling” reasons to do so (see below).

What did the guidance say?

Ms Justice Lieven noted that guidance regarding intermediary appointments in the family court was not clearly set out in the Family Procedure Rules or any Practice Direction. She advised the guidance used in criminal proceedings should also be applied in family proceedings. As in criminal cases, intermediaries can still be used throughout family proceedings, subject to applications.

In some cases, an intermediary may only be approved to assist family court users at certain stages of proceedings (for example, when evidence is particularly complex, or during the court user’s evidence).

The key points from the R v Thomas (Dean) guidance which the family courts will now adopt are as follows:

R v Thomas (Dean) guidancePoints to consider
Intermediaries should only be appointed if there are “compelling” reasons to do so.Communicourt only recommends intermediary assistance when the assessing intermediary finds there is a compelling reason to do so. The reasons for the recommendation are clearly set out in the intermediary report, with reference to Appendix 1 (which documents observations and findings from the assessment in detail, supporting the recommendations we make).

Communicourt reports highlight observed communication difficulties and the likely impact of these difficulties on a court user’s ability to participate effectively in proceedings. This information can be used by advocates to present a compelling argument when making an application for an intermediary.

We do not recommend in every case. Our intermediaries are salaried employees and have no incentive to recommend or otherwise. Referrals are typically made following a recommendation from a psychologist or first-hand experience of communication difficulties with a client from a solicitor. This means there is a high probability that the referred individual does indeed have a communication difficulty which will impact their participation in proceedings.
It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a “just in case” basis. It is for the Judge to take a view regarding how rare they consider the content of the case and the needs of the court user to be, after considering the intermediary report, other professional reports (if available) and the application for an intermediary.
The Judge must give careful consideration, not merely to the circumstances of the individual but also to the facts and issues in the case. This is an important consideration. Assessing intermediaries do not have access to information about the case when conducting assessments, and therefore it is for the judge to make a holistic decision regarding the support needed in the case (for example, if there is complex medical evidence which the individual will require support to follow).

The intermediary report will clearly set out areas of communication difficulty and the likely impact of these difficulties in legal proceedings. The judge can use this information to decide at what stages of proceedings, a court user will require intermediary assistance.

It is important to consider that family proceedings are often lengthy and unpredictable. For example, expert witnesses can be required at the last minute, or a party’s position may change on the morning of a Final Hearing. Court users with communication needs may have to make important, informed decisions which require them to understand emotive, complex and abstract information, under considerable pressure.

To avoid delays to cases, we recommend that, if there are any concerns about a court user’s communication, a referral is made for an intermediary assessment at the earliest opportunity (assessment wait times are approximately 2-3 weeks and reports are completed within 5 working days. Urgent assessments can typically be accommodated much sooner). This means that, if case content changes and an intermediary is required at short notice, they can be allocated as soon as possible.
In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the court user can effectively participate in the trial. Communicourt reports set out a full list of recommendations which will support a court user’s participation in legal proceedings. However, if an intermediary is recommended, it is because the assessing intermediary is of the view that, even with these recommendations in place, the court user will not be able to participate effectively without intermediary assistance.

If the judge takes the view that intermediary assistance is not required throughout proceedings, the additional recommendations can still be applied to support your client’s participation to some extent.
The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary [for example a psychologist] is not necessarily a deciding factor. Although not determinative, the views of experts should, of course, contribute to the decision-making process for the judge.
If no intermediary is available, cases should almost never be adjourned. Instead, adaptations should be implemented to support participation in the absence of an intermediary.As above, we recommend that intermediary assessments are requested at the earliest possible stage, to allow intermediaries to be assigned promptly to cases. Communicourt assessment wait times are approximately 2-3 weeks and reports are completed within 5 working days. Urgent assessments can typically be accommodated more quickly, in some cases within a few working days.

Please let us know your hearing dates and we will be able to give you a transparent view of whether or not we are likely to be able to provide an intermediary for the hearings. We have over 100 full time intermediaries working across England and Wales, so this is unlikely to be an issue. Subject to the demands on the service, we are often able to accommodate urgent requests.


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