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 very 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.

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 light of the new judgement, please contact
admin@communicourt.co.uk or telephone us on 0121 663 0931 (Mon-Fri, 9am-4.30pm).

A black and white picture of Georgia on a blue background

My Intermediary Journey: Georgia and speaking English as a second language

A black and white picture of Georgia on a blue background

Hello, everyone! I’m Georgia, and I’ve been working as an intermediary at Communicourt for the past year and a half. I was born and grew up in Greece and moved to the UK over five years ago for my post-graduate studies. English is my second language, and I must admit that I didn’t always feel confident in my English proficiency.

I began learning English during my primary school years, but it was more of a basic level, similar to how students in the UK start learning French or German in primary school. About a year before moving to the UK, I took fast-pace English lessons to reach a more fluent level. At that time, I could communicate quite well in English, although I wasn’t nearly as skilled or confident as I am today. My journey has been an incredible learning experience, and I would like to share some of the insights I’ve gained along the way.

Embracing accents

One of the initial difficulties I faced upon arriving in the UK was dealing with various accents. Learning English from a Greek teacher didn’t fully prepare me for the many different British accents. I distinctly remember struggling to understand people during my early days here. I remember being at cafes when they asked, ‘Stay in or take away?’ and I had to ask them to repeat it. It took me a few months to get used to the British accent.

Little did I know that five years later, I would be working as an intermediary, communicating daily with court professionals and people with communication difficulties, in many different parts of the country, with a host of diverse accents and dialects. This experience has massively improved my ability to adapt and understand different accents. Through my experience, I’ve learned that building rapport and spending time attuning to each others is essential when meeting someone with an unfamiliar accent. Also, patience and active listening play a crucial role in bridging communication gaps.

Hearing various accents has not only improved my understanding but also made me appreciate the linguistic diversity that exists in the UK. It’s a testament to the beauty of language and the importance of inclusivity.

I understand that my own accent is unique, and individuals who are not used to hearing it may initially find it challenging. However, I’ve not yet experienced problems with court users understanding my way of speaking. The key here is the same: patience and building rapport can assist people to comprehend diverse accents. In my role as an intermediary, I always speak at a slow pace and break down information using everyday, commonplace words . This approach helps those who are not familiar with my accent and also ensures effective communication with every court user.

Idioms and non-literal language

As someone who speaks English as a second language, I rarely use figurative language or idioms. This isn’t because I don’t understand their meanings, but rather because idioms can vary significantly from one country to another. This aspect of my language background has proved to be very helpful when working with court users, many of whom struggle with non-literal language. For me, simplifying language or avoiding idiomatic expressions comes naturally, making communication smoother and more accessible for those I assist.

My ability to convey information in straightforward terms has been an asset in the courtroom. It ensures that the court users I support are better able to comprehend the proceedings and can actively participate in their legal matters. It’s a reminder that clarity and simplicity can transcend language complexities and can make it easier for others to understand and connect with the message being conveyed. In other words, less is more when it comes to effective communication.

Overcoming the fear of mistakes

Being fluent in English doesn’t mean that I don’t make mistakes when speaking or writing. Conversations in formal settings can be nerve-wracking for anyone, and adding the complexity of speaking in English as a second language only heightens the stress. However, my experience at Communicourt, along with the extensive training program, has significantly reduced my worries by helping me to feel more prepared when going to court and assisting court users.

As intermediaries, we are held to high standards in terms of our English language proficiency, but I’ve learned that it’s okay to make grammar mistakes from time to time. What truly matters is our understanding of the subject matter, our understanding of each court user, and our ability to effectively convey information. I’ve learnt that it’s also okay to ask for help when you need it. Openly acknowledging when we find something challenging and actively seeking assistance can set a powerful example for those we assist. By demonstrating our own willingness to seek support, we can inspire court users to overcome their hesitations and reach out for help when they need it most.

Additionally, I was nervous about making grammar mistakes when writing reports which are essential for my role. However, I’ve come to realise that writing a grammatically flawless report is an unattainable goal (even in Greek I would have struggled to do that!). What’s more important is the content of the report and ensuring that important information is accurately documented. With that said, I’m enduringly grateful to my colleagues for their proofreading (all Communicourt reports are quality checked by our colleagues).

What I’ve learned

My journey as an intermediary at Communicourt has been a transformative experience. Embracing the challenges posed by language, accents, idioms, and the fear of making mistakes has allowed me to grow both personally and professionally. I’ve learned that effective communication goes beyond perfection in language; it’s about understanding, empathy, and connecting with others.

In a few words, if you ever find yourself in a similar situation, remember that your unique language characteristics can be an asset. Your linguistic journey is not an obstacle, in your career, nor in life. Embrace the challenges and use them to progress toward personal and professional growth. Language is a bridge (yes, I just used a non-literal expression in English!), and the journey across it is a beautiful one, no matter where you start.


Access to Justice Conference banner

The words "My Intermediary Week" on a watercolour background

My Intermediary Week: Anna

My name is Anna and I’ve been an intermediary at Communicourt for two and a half years now (wow time flies!). I studied Psychology at university and, once I had finished my course I became an analyst – which I found very boring as I had to look at excel spreadsheets for hours on end! But it was in this job that I first heard about the role of an intermediary from one of my colleagues. I started to research the role and it really appealed to me. I’ve always been interested in court. My Granddad became a magistrate when he retired, and growing up, I always loved hearing his stories from the courtroom. However, I was never drawn to a career in law. So, when I heard about the role of an intermediary, I was very excited at the prospect.

My job as an intermediary is to assist individuals with communication difficulties going through court proceedings. This is usually in either the criminal or family court. In this blog post, I will take you through a recent week in my intermediary life! However, it’s important to remember that no two weeks are the same for an intermediary. Each new week brings new cases, new people and fresh chances to have a positive impact on an individual’s access to justice.


Monday

My week started with a remote family court case. Working from my home, I emailed the solicitor to try and arrange pre-hearing discussions so I could talk with the service user to introduce myself, build rapport and explore how we could communicate during the hearing.

Unfortunately, I did not get a response. Despite making lots of different phone calls, by 9:30 (when the court hearing was due to start) I still had not had any contact from the solicitor, nor received a link for the court hearing itself.

After continuously trying to make contact, I was finally sent the link to the hearing – well after court had already started! I joined mid-way through the hearing and made a note of what was said. After the hearing, I tried to arrange a post-hearing conference to explore the service user’s understanding of the hearing and to provide support with any areas of difficulty. Unfortunately, this was also not possible. I then updated the case notes so the next intermediary who works with this service user can check their understanding of the case.

This was a frustrating start to the week, as usually remote hearings are much more straightforward than this. In the majority of cases, contact numbers are available and it is straightforward to set up a pre- and post- hearing discussion. It is also very rare that an intermediary is only provided access to the hearing part-way through. Typically, at the outset of remote hearings, ground rules are discussed with the intermediary, so everyone is appraised of any needs the service user may have and knows how remote intermediary assistance will be managed.

Equally, by the time most remote hearings start, I’ve usually had a chance to speak with the service user. At this stage, I typically explore the best options for providing remote assistance (either through an open phone line during the hearing, by using a CVP intermediary room or by text messaging during the hearing – all dependant on the technology available to the service user, and their level of literacy). In most cases, by the time hearings commence, myself and the service user will have exchanged numbers and set up a method of communication, to ensure they have access to simplification, recaps and other assistance. Today, things didn’t go so smoothly, but it can only get better from here!


Tuesday

Tuesday was supposed to be a day to catch up on admin work but, at approximately 10:30am, I received a call from the Communicourt bookings team asking me to cover a last-minute family court hearing. To make matters more interesting, the person I would be assisting needed some further assessment to gain a full understanding of their communication abilities.

By 11am I was on a Zoom call with the service user, conducting some further assessment tasks which looked at some areas of communication that had not been previously assessed. After this, I gave their barrister a quick call to update him on the new findings, before entering the remote family court case.

The court hearing was about ensuring the individual would be able to participate in the upcoming in-person hearing effectively. I addressed the judge and gave some recommendations to the court about what would help this person participate to the best of their ability. The judge agreed to all of my recommendations which included:

  • Advocates for all parties to send their proposed questions to the intermediary in advance of the service user’s evidence (to allow the intermediary to check the questions are worded and structured in a way that will be best understood by the service user – allowing them to give their best evidence).

  • Permission for the service user to remain in their usual seat in the body of the court during their evidence (due to high levels of anxiety).

  • Only one advocate to ask questions on behalf of all parties (to help minimise the impact of anxiety upon their ability to process questions and formulate responses).

  • Frequent breaks (with recommended timings).

  • Permission for the service user to make use of an attention aid (tangle toy) at court.

Wednesday

On Wednesday I had a break from the family court and instead attended a conference with a young person facing criminal proceedings. They were someone I have assisted before, so I already knew a bit about their communication profile, but I reminded myself of their communication needs by reviewing their intermediary report and cognitive report in advance. I also reminded myself of the case by reading the intermediary case notes.

It was then time to attend the conference, after a short walk over to the solicitor’s office, I helped the service user to understand the process of a trial by creating a simple court diagram showing who will be sat where and by explaining the job of each person in the room. I also used a visual aid to help the service user decide whether he will be plead ‘guilty’ or ‘not guilty’ by using a flowchart to explain each option and the potential outcomes of both. Throughout our meeting, I intervened to check the service user’s understanding and simplified any low frequency language his barrister used, this helped the service user give clear instructions and follow what was being said.

Ficticious example only, does not include key information (e.g., impact on sentence)

Thursday

On Thursday I attended another conference, this time with someone who had a very important family court hearing coming up. Again, this was a service user I had previously worked with and so I already had an understanding of their communication abilities, but it is still important to frequently remind myself of the individual’s case and communication profile. I re-read the intermediary report and case notes in advance of the meeting.

During the meeting, I assisted the solicitor to ask questions in a way that made sense to the individual and allowed him to give clear responses.

For example, the solicitor asked, “So you don’t agree with what the local authority want?”. This is a statement-style question which invites agreement (making it harder for more suggestible people to contradict). It also included a negative (“don’t”), which can prompt unclear answers.

I therefore asked the service user, “What do social services want?” and, “What do you want?”. This enabled me to check the service user understood what other parties in the case were asking for, and also enabled the service user to provide clear instructions.

We then spoke about what sort of recommendations could be made in court to aid the service user’s participation in the upcoming hearing. For example, asking the court to sit for shorter days, due to the service user’s difficulties with concentration, and asking for regular breaks, so the intermediary can check understanding and allow time for the service user to ask any questions.


Friday

Friday brings yet another new court case to my calendar. I assisted a young person who I have worked with numerous times before. Today was an in-person family court hearing, which involved taking an early morning train to court. Whilst on the train, I read through the report and case notes to remind myself of exactly what sort of support was required.

When I arrived in court, I met the service user and barrister, and we found a quiet space to have pre-hearing discussions. During this conversation, I assisted the service user’s understanding by explaining low frequency vocabulary (less commonly used words) and asking questions to check they had understood what was being said.

For example, when the barrister said, “The local authority’s position is ambiguous right now” I explained that meant, “The social workers are not being clear about what they want”.

At the end of the conference, in order to check the service user’s understanding, I asked specific questions such as, “What does *NAME* want to happen?” and, “Why are you having an assessment?”. These questions enabled me to check that the service user had gained a clear understanding of what had been discussed.

After a break, it was then time to enter the courtroom. I sat with the service user and whispered real time explanations to them throughout the proceedings. For example, when one of the barrister’s said *NAME’s* statement has been “filed and served”, I whispered to the service user, “The court have got a copy of *NAME’s* statement”. I also drew a simple line drawing of the courtroom to show who was sitting where and what their job was. This assisted the service user to understand who was speaking on behalf of who.

Simple line drawing of a family courtroom, labelled with roles of different parties and professionals.
Ficticious example (does not include names)

At one juncture, they made an important comment to me, so I passed a note forward to the barrister. The barrister then addressed the judge on this point. After the hearing, we had a quick conversation with counsel to go over what was said in court. I checked the service user had understood everything by asking focussed questions and asking them to explain what had happened in court in their own words.

It was then time to go home. On my train home I completed some admin tasks and wrote up the case notes from the day.


Working as a Communicourt intermediary requires resilience and adaptability. It is an extremely rewarding role, where every day is interesting and new. The job is unpredictable and unforeseen circumstances arise all the time, but every day brings new stories, unexpected twists, new challenges and the chance to make a positive difference to people facing some of the most difficult moments of their lives.  

The Access Brief logo

If you would like to learn more about the intermediary role at different stages of family and criminal proceedings, visit The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs, including guides to working with clients who have a range of common conditions which impact communication.