By Nicola Lewis
The Court of Appeal decision in Re M (A Child: Intermediaries) EWCA Civ 440 has provided welcome clarity on the appointment of intermediaries in the Family Court.
Importantly, it has reminded everyone of the need for the court to make adjustments, to ensure “as far as practicable, that all participants are on an equal footing,” given the importance and complexity of the issues Family Courts address.
The Changes in the Landscape
Mrs Justice Lieven provided guidance on the appointment of intermediaries in January 2024. Almost a year later, the President of the Family Court issued Practice Guidance on the use of Intermediaries in the Family Court. At this point, it seemed to TIC Intermediaries that the footing of some vulnerable service users was decidedly shaky.
The January 2025 Guidance instructed the Judiciary to follow Lieven J’s guidance and that provided by Williams J in subsequent cases: intermediaries should only be appointed rarely, and extremely rarely throughout a final hearing. Judges were to decide what other measures would suffice, often without the assistance of an intermediary report.
Despite this Guidance, TIC continued to assess individuals and make recommendations about whether an intermediary and other special measures were necessary. However, we are aware that many applications for intermediaries were rejected on the basis of the new tests, and so we were never able to make recommendations when an intermediary was required, or to recommend other appropriate measures where we were not needed.
The Court of Appeal and “the Unvarnished test of Necessity”
The Court of Appeal’s decision has taken us back to the test of necessity over rarity and exceptionality. We welcome the Court of Appeal’s return to “a straightforward application” of the Family Procedure Rules (FPR) which were amended to incorporate provisions governing vulnerable people, a recognition of needs, and participation directions as recently as 2017 following a Working Group report in 2015. This was the end result of much work and deliberation.
Court of Appeal pointers for appointing an intermediary
An application for an intermediary must have an evidential basis.
The Appeal judges reinforced the FPR provision that all parties in proceedings have a duty to identify vulnerability. Evidence can come from:
- An expert report (for example a psychological, psychiatric or cognitive assessment)
- Evidence from the social worker or the children’s Guardian
- Submissions on the parent’s behalf
- Submissions from other parties
Establishing vulnerability is the first step towards a participation direction for an intermediary.
The Judge then decides where the individual sits on the spectrum of vulnerability and considers what other measures may work, to enable effective participation.
While the earlier Lieven guidance suggested that legal professionals could bridge the communication gap in many cases, the Court of Appeal emphasised that advocates “cannot stray beyond their reasonable professional competence”.
This must be right. There is a category of need that does go beyond the work that legal professionals can fairly and realistically be expected to do.
Has there been a perception that intermediaries have been used where they were not really necessary? In all likelihood, yes, and the Court of Appeal has firmly placed the responsibility with the intermediary to explain the need for a trained specialist and for the Judge to apply the necessity test.
How can we better assist Judges in making their decisions for participation directions?
Intermediaries could be more proactive by clearly addressing:
(a) why other measures such as legal professionals or an advocate will not be sufficient, and why a communication specialist is required; and
(b) at what stage an intermediary is needed and whether other special measures would be sufficient at other times during the proceedings.
The Judge can then weigh all the factors, including the characteristics of the individual and of the proceedings, and the costs and make their decision.
The Costs issue
Of course, costs are an issue. But I am guessing that the costs of adjourned trials and appeals are higher than the costs of having an intermediary when one is needed?
In addition, the Court of Appeal highlighted the very real human costs where there are pressures on the system:: “there is a risk that pressure in any system is disproportionately felt by those least able to bear it.”
At TIC, we are proud of our person-centred, socially responsible approach to the work we do, based on the communication needs of service users and the work of the justice system which needs to be able to administer the law effectively.
We welcome this renewed opportunity to bridge the communication gap and encourage the meeting of real communication needs in the justice setting.