New Guidance: Use of intermediaries in family proceedings

In January 2024, a new High Court Judgement from Mrs Justice Lieven was published, including guidance on intermediary use in family proceedings (West Northamptonshire Council v KA & Ors [2024]).

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.

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).

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).

The key points from the R v Thomas (Dean) guidance which the family courts will now also use 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 very challenging to quantify the subjective “exceptionally rare” stipulation in a family court context, where a proportionately large number of court users involved in care proceedings (particularly) are likely to have communication difficulties. It will be a decision for the judge as to how rare they consider the content of the case and the needs of the court user to be, after considering the intermediary report and 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 light of the new judgement, please contact or telephone us on 0121 663 0931 (Mon-Fri, 9am-4.30pm).