Much like everyone in Britain eventually having to take their turn being a member of the Sugababes, we are all also going to need to be conscripted into being an intermediary for a short period.
(By way of background, an intermediary is a specialised professional who helps support vulnerable witnesses in the Court process, both during their evidence and during the hearing and also assists the Court with a report setting out Ground Rules of what accommodations ought to be taken during the hearing – for example breaks, the ability for an intermediary to explain things or seek a break to explain things and often guidance to the Court and advocates on how questions should be formulated)
This Court of Appeal decision is a cousin to the last case I wrote about, in that it is an appeal of a decision which was granted because the Court had not considered something that was never raised with them at the time.
After the decision was made by the Court, those representing A (who was not the mother of the child in question S, but the mother of another child J and who became an intervener in the proceedings and the Court made findings about her in relation to the child S) became concerned that the mother ought to have had an intermediary in the first set of proceedings – there had not been a cognitive assessment of her and those representing her had at the time not had a concern that she needed either a cognitive assessment or an intermediary.
In linked proceedings relating to J, cognitive assessments and an intermediary assessment had been undertaken, and that caused those representing the mother quite rightly to reflect on whether she ought to have had similar support in the original proceedings.
S (Vulnerable Party: Fairness Of Proceedings)  EWCA Civ 8 (18 January 2022)
“The first report, dated 28 June 2021, on a cognitive assessment carried out by two psychologists, Dr Gary Taylor and Ms Lucy Howe, included the following passage:
“We are not recommending any special measures to enable [A] to participate in a hearing although she is likely to take benefit from there being regular breaks in the proceedings so that information can be explained to her in words that she can understand. Important information pertaining to the proceedings may need to be explained to her more than once. Professionals should ask her to repeat, using her own words, what has been said to her so that they can confirm her understanding.”
The second report, dated 7 September 2021, prepared by Dr Indira Josling, a consultant clinical and forensic psychologist, included the following paragraph:
“[A]’s cognitive functioning assessment showed that she is better at perceptual reasoning than verbal reasoning; she prefers written and verbal information to be presented in clearer formats extra time given to her to assimilate the material. Her full comprehension of what she may be reading may need further support and time and would not necessarily be immediate. I ensured that I gave [A] adequate time on all of her assessments to enable her to do so. I would also question whether she may need a separate assessment for dyslexia which may also present as a learning need. FSIQ score was assessed as being 88, low average. [A] may therefore require an advocate or intermediary in formal meetings, interviews and assessments to help assimilate written and verbal material and her comprehension needs may be better accommodated if other forms of communication were to be used e.g. flow diagrams, charts etc.”
On 18 November, A attended an assessment meeting with an intermediary employed by Communicourt Ltd. On 22 November, the day before the appeal hearing, an email was received by A’s solicitors from Communicourt in the following terms:
“I am recommending an intermediary for [A]. As she has difficulties with:
-processing long sentences
-understanding court specific terminology
-understanding and responding to complex grammatical structures
-understanding complex vocabulary
-processing simple verbal information
-remembering key dates, and often gets the detailed confused.”
On the basis of these assessments, Ms Suzanne Kelly, who represented A before the judge and before this Court, submitted that her client had hidden cognitive difficulties which were not apparent during these proceedings. She informed us that A had been able to give clear instructions and appeared to understand the advice provided and the proceedings. Towards the end of A’s evidence, Ms Kelly had some concerns that she might have some difficulties, although it was not clear that these were cognitive issues, as opposed to misunderstanding questions which were long, complex and multifaceted. Ms Kelly added that, as a result of the Covid-19 pandemic, she and her instructing solicitors had never met A in person before the appeal hearing. All instructions had been taken over the telephone.”
(I pause here to say that in the context of care proceedings where a cognitive assessment is undertaken a full scale IQ of 88 is not particularly low and would not tend to ring any alarm bells. It is low average. Hence my opening remarks – if intermediaries are going to be necessary for cases where a parent or witness has an IQ of 88 then there are going to be a LOT more intermediaries involved in care proceedings)
The Local Authority and the mother of S opposed the appeal.
“These assertions are, of course, all made “after the event”, after A had serious findings made against her after a long hearing before a Circuit Judge. On behalf of the local authority, Ms Sally Stone QC did not oppose the application to amend the grounds of appeal, but opposed the appeal on this, and the other, grounds. She relied on the fact that no one had expressed concern about A’s cognitive functioning or understanding at any stage in the proceedings up to and including the fact-finding hearing. In that period, A was able to give detailed instructions to her solicitors and to participate fully in the hearing. Ms Stone took us to a number of examples in the transcript where, she suggested, it is clear that the appellant was competent to give evidence. Ms Stone drew attention to A’s use of language and to her ability to answer back, for example at one point saying “I’m not having you put words into my mouth”. Ms Stone also contended that A’s use of various words (“insinuate”, “tendency”) shows that she had a good command of vocabulary. In the circumstances, Ms Stone submitted that there was no reliable evidence that A was denied a fair trial.”
The Court of Appeal granted the appeal
“We have focused on the issue of vulnerability in cases like the present involving parties or witnesses with limited understanding. There are other equally important provisions in Part 3A applying to victims or alleged victims of abuse and intimidation. All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly. As King LJ observed in Re N (A Child)  EWCA Civ 1997 at :
“Part 3A and its accompanying Practice Direction provide a specific structure designed to give effective access to the court, and to ensure a fair trial for those people who fall into the category of vulnerable witness. A wholesale failure to apply the Part 3 procedure to a vulnerable witness must, in my mind, make it highly likely that the resulting trial will be judged to have been unfair.”
It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust. We are alive to the fact that many witnesses will give their evidence in a way which falls short of the standard that they would have wished for, or their advocates had hoped. Sometimes, this may be because of the very nature of human frailty, at other times it may be because a witness was deliberately deflecting or obfuscating or, worse still, lying.
Returning to the case under appeal, we have considerable sympathy with the judge. We are keenly aware of the pressures on judges hearing complex care proceedings, greatly extended by the problems caused by the Covid-19 pandemic. For reasons which it is unnecessary to spell out in detail here, this case presented the court with a range of challenging case management issues, concerning drug testing, mobile phone records, and police disclosure. Given the particular care which the judge devoted to ensuring that X had a fair opportunity to give her evidence, we feel confident that she would have adopted an equally careful approach to A’s evidence had she been aware of her difficulties. In the event, no party or legal representative identified the possibility that A was or might be a vulnerable person because of impaired level of comprehension and we are satisfied that she was fairly treated within the context of what was then known. We acknowledge the difficulties mentioned by Ms Kelly facing A’s legal team who, because of the pandemic, were unable to meet their client face to face until the appeal hearing. We observe, with the great benefit of hindsight available to this Court, that legal representatives should be particularly vigilant to detect possible vulnerabilities in their clients when they are unable to meet them in person. In this case, A’s difficulties were not immediately evident to Ms Kelly who only became concerned about her client’s level of understanding towards the end of the hearing. It is notable that the need for an intermediary was not identified in the initial cognitive assessment carried out by Dr Taylor and Ms Howe in June 2021 and the extent of A’s difficulties only became apparent in the subsequent assessments carried out by Dr Josling and Communicourt.
Nevertheless, we have reached the clear conclusion that the failure in this case to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and that as a result the outcome of the hearing was unjust. Of course, conducting the hearing over nine days, the judge was in the best position to make an assessment of the demeanour and competence of the witness, albeit in less than optimal conditions via a video link. But the new material that we have now read has an obvious bearing on the demeanour and credibility of the appellant. In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness’s evidence will not warrant any interference with the decision. In this case, however, the judge’s assessment of A’s character and plausibility of the witness were central to her ultimate findings.
In her judgment, the judge observed that assessing the parties’ evidence was not a straightforward matter and at times it was “very difficult to identify the truth”. The judge’s attribution of responsibility for the injuries between X and Y on one hand and A on the other was based on a close analysis of the accounts given by all three adults, each of whom had lied at various points. In our view, there is a significant possibility that this evaluation would have been refined if not revised by knowledge that A had difficulties of comprehension as a result of which the quality of her evidence, as defined in rule 3A.1, was likely to be diminished. As demonstrated in the passages from the judgment cited above, the decision was substantially based on the judge’s assessment of A’s evidence, from which she drew a number of conclusions adverse to A’s credibility. These included conclusions about (1) the reasons A gave for her lies about her ketamine abuse; (2) her apparent failure during her evidence to treat the drug issue with appropriate seriousness; (3) her account of how on the evening of 19 January she had noticed the abrasion to J’s arm but not the abrasion on his face; (4) her failure to inform school staff about the injuries, and (5) the delay of forty minutes in reporting the injuries to social services. It is likely that the judge’s interpretation of A’s acts and omissions on the evening of 19 January and the following morning would have been materially affected by an understanding of A’s intellectual and communication problems. Most striking of all is the judge’s description of A as being “very deflective” during her oral evidence, “able to answer the question in a way that lost the actual question”, manipulative and “very calculating”. There is at least a significant possibility that this assessment would have been different had the judge known of A’s difficulties as subsequently explained by Dr Josling.
We therefore grant A permission to amend her grounds of appeal and to adduce the evidence relating to her cognitive difficulties cited above, and we allow the appeal on the grounds of procedural irregularity set out in the amended ground. It is important to stress that we are not saying that the judge’s findings were wrong – we are not in a position to say that one way or the other. Whilst we agree that, had the appellant been treated as a vulnerable party or witness, a ground rules hearing would have taken place and the hearing conducted differently, that would not necessarily have led to a different outcome. We are allowing the appeal on the basis that the decision was unjust because there are strong reasons to suspect that A did not have a fair opportunity to present her case.”