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 judgment | Points 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).
