High Court judge adjourns hearing on appointment of intermediary in family law proceedings

A High Court judge has adjourned an application made on behalf of a mother for an intermediary assessment within care proceedings, noting that intermediaries are only to be used when their use is “necessary”.

In X & Y, Re (Intermediary: Practice and Procedure) [2024] EWHC 906, Mr Justice Williams observed: “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.”

The case concerned care proceedings relating to two children, brought by the local authority.

An application was made on behalf of the Mother in April 2024 on form C2 for a 'Part 25 for an Intermediary Assessment'. The statement in support said:

“The Respondent Mother has a diagnosis of PTSD and ADHD and requires support of an intermediary throughout proceedings. The personal and intimate nature of proceedings, as well as the client's dual diagnoses, may impact the client's ability to understand, focus and digest documents and information throughout the hearings, and proceedings more generally but a specialist assessment is required to identify these issues and to ensure the Mother's Article 6 rights are protected and she is able to give her best evidence.”

The Statement in Support identified three possible 'experts' to undertake the assessment.

FPR r3A.1 defines an intermediary as follows:

"… [I]intermediary means a person whose function is to –

(a) communicate questions put to a witness or party;

(b) communicate to any person asking such questions the answers given by the witness or party in reply to them; and

(c) explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions…"

Mr Justice Williams said: “That identifies a very narrow remit for an intermediary. Whilst I do not think (albeit without hearing full argument) that the definition should necessarily be interpreted as meaning an intermediary can only perform those functions it does give an indication of what their primary function is.”

He added: “Previous cases which described an intermediary as an expert have been superseded by the implementation of FPR3A.”

The judge noted that in considering whether an intermediary is necessary, the court will wish to consider what other steps can be taken to ensure “fair participation”.

He said: “FPR PD3AA identifies a wide range of steps which can support a party participating or giving evidence short of the instruction of an intermediary. It should not be the default position that a witness or party who is identified as vulnerable and needing measures to be taken to support their participation or giving of evidence requires an intermediary.”

The judge observed that a “major component” of the role of legal representatives is to ensure their client understands the proceedings and their role in them. Therefore, only if the court is satisfied that the usual support a legal team and other measures available to the court will not enable the party to participate fairly will it be necessary to provide for an intermediary.

He added that the tailoring of language and the use of the tools identified in the Advocates Gateway will often be enough to enable fair participation.

Applying the legal framework to the present case, the judge concluded: “As the rules make clear decisions on the use of an intermediary require evidence to establish that their use is necessary. This evidence may emerge from an expert report which the court has given permission for – for instance a cognitive assessment by a psychologist. It may emerge from the medical history of the party or witness which might confirm they have a learning disability or difficulty, or a condition or disorder which impacts on their ability to participate but which falls short of rendering them incapacitous to conduct proceedings within the meaning of the MCA 2005.”

He added: “There is little in the current expert, Social worker or Independent Social Worker reports which suggest a significant difficulty [in the mother’s ability to participate in proceedings], although it is true that they recognise the possible relevance of a diagnosis of ADHD or PTSD.

“It has been agreed that 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.”

Mr Justice Williams adjourned the application.

Lottie Winson