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President issues guidance on use of intermediaries, lay advocates and cognitive assessments in Family Court

The President of the Family Division, Sir Andrew McFarlane, has issued practice guidance on the use of intermediaries, lay advocates and cognitive assessments in the Family Court.

Introducing the guidance yesterday (23 January), he noted that in any case where an application is made for a cognitive assessment or an intermediary or lay advocate assessment, there will be an “expectation” that the party making the application will have considered the guidance, and be able to provide “evidence and reasons in support of the application”.

On the role of lay advocates, the guidance states that whilst neither an intermediary nor a McKenzie Friend, a lay advocate is in a “very similar position” to that of an intermediary.

Therefore, “for the purposes of this guidance, where the term ‘intermediary’ is used it is to be taken to include ‘lay advocate’.”

The role of an intermediary in family proceedings sits within the range of provisions describing the approach that the court is required to take by the Family Procedure Rules 2010 Part 3A: ‘Vulnerable Persons: Participation in Proceedings and Giving Evidence’.

The practice guidance states: “Under Part 3A, the court has a duty to consider the vulnerability of parties and witnesses, to consider how a party can participate in the proceedings and to consider how a party or witness can give evidence. In such cases, and where the individual is, or is at risk of being, a victim of domestic abuse, the court must consider whether it is necessary to make one or more ‘participation directions’ to assist in participation and/or giving evidence.”

The guidance notes that advocates should consider how vulnerable parties and witnesses can be supported to give their best evidence and engage with the proceedings, and that guidance on working with parties who are neurodiverse should be “embedded” into day to day professional practice.

It clarifies that a child is automatically a witness whose participation is presumed to be diminished “by reason of vulnerability”.

It adds: “A young witness’ ability to comprehend language, no matter how advanced they appear, is likely to be less than that of an adult witness. A child’s vulnerability is likely to be enhanced if they are a younger child, or an older child with mental health difficulties or learning difficulties, or one who is neurodiverse, or affected by trauma or emotional health difficulties.”

Outlining how the court should determine whether the use of an intermediary is required, the guidance recommends assessing whether that direction or appointment is “necessary” to enable a party to participate in proceedings fairly by enhancing their ability to receive and answer questions that may be put to them.

The guidance recommends advocates “familiarise themselves” with the observations on intermediary assessments provided in:

  1. West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam);
  2. X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam);
  3. Oxford CC -v- A Mother (Intermediary Appointment Refused) [2024] EWFC 161.

On preliminary assessments, the guidance notes that in some cases, the court will be able to reach a “clear conclusion” on vulnerability, in which case the court may direct an intermediary assessment. In others, the court may find that there is insufficient material to determine whether vulnerability exists.

It adds: “In such cases the court may wish to order an ‘intermediary preliminary assessment’ to help inform its decision, or to seek further information from those who know the individual.

“The decision whether to commission an intermediary preliminary assessment is to be taken by the court; a party should not obtain and file a preliminary assessment report without the prior leave of the court.”

Lastly, on cognitive assessments, the guidance clarifies that the instruction of an expert to conduct a cognitive assessment will only be granted if it is “necessary” to resolve proceedings justly.

It adds: “In addition, if used to justify an assessment by an intermediary, any such cognitive assessment must:

  1. provide evidence that the use of an intermediary is necessary to enable the party to participate in the proceedings fairly;
  2. provide reasons, and evidence in support, to explain why fair participation could not be achieved by alternative means, for example, by the court applying the principles set out in the Advocates Gateway;
  3. when answering those questions, an assessment must consider the party’s participation specifically at each stage of the proceedings;
    i. case management hearings,
    ii. conferences/taking instructions,
    iii. giving evidence at a contested hearing."

Concluding the guidance, the Family President reminds advocates: “The decision to appoint an intermediary is always one for the judge. The conclusions of either a cognitive assessment and/or an intermediary assessment, whilst informative, are not definitive on this issue.”

Lottie Winson
A&M Bacon