Important High Court decisions on cognitives and intermediaries

These are two important Lieven J authorities which will be useful for all practitioners. .

West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam) (23 February 2024)

https://www.bailii.org/ew/cases/EWHC/Fam/2024/395.html

It was an application for a cognitive assessment, made by those representing the mother, which was withdrawn on the day of the hearing, but the Judge considered that it raised issues that might benefit from a judgment.

I think that it is warranted – not that the features of this case were particularly bad or unique, but rather that maybe people have got a bit lax on the rules and the law since 2014 and a judicial refresher might be in order.

The application basically said this:-

The Court is requested to commission the instruction of a psychologist to undertake a cognitive assessment of the Mother to assist both the Local Authority and the court in ascertaining:
a) How any assessments should be conducted of her;
b) Her level of intellectual functioning to assist professionals in understanding how she retains information, learns parenting skills and acts on advice;
c) What support she is likely to require in any court hearings and meetings with professionals.

2. Instructing Solicitors on behalf of [the Mother] is of the understanding that the information identified within a cognitive functioning assessment would identify recommendations which the court and professionals must utilise to ensure that [the Mother] is fairly represented within proceedings.
3. A cognitive assessment will provide valuable insight to parties regarding how hearings or cross examination should be conducted in respect of [the Mother] and whether she will require any assistance within proceedings moving forward. If a cognitive assessment was not completed, it is believed that [the Mother’s] Article Six Rights to a fair trial will not be upheld.
4. Furthermore, the Local Authority is likely to carry out further assessments during the course of proceedings. The cognitive assessment will be informative in respect of [the Mother’s] cognitive needs in order for appropriate measures to be put in place. This would allow [the Mother] to engage meaningfully and entirely with all meetings, assessments and court hearings.”

And those are all good reasons WHY, if the mother had a cognitive difficulty, the report would be necessary to assist the Court. What was lacking really was why it was asserted that the mother had a cognitive difficulty.

The statement in support stated at paragraph 11:
“The Mother is deemed vulnerable due to her age, her past experiences and mental health issues. The mother has indicated that she struggles with engaging within professional meetings and retaining information.”
It hardly needs stating that these three matters are exceedingly common in care proceedings, and do not begin without further detail, to justify a psychological assessment. An application under Part 25 for a psychological/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings. The evidence must explain why the parent’s needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be “nice to have”.
It would often be the case that if one parent does have cognitive issues this will have been identified at school, during previous interactions with the Local Authority and/or in pre-proceedings work. These earlier interventions will frequently identify whether there are cognitive challenges, and how they can best be handled

The Court was somewhat critical of the Guardian’s position in remaining ‘neutral’ despite the skeleton argument being plain that the test of necessity was not made out.

It is in my view unfortunate that the Guardian and her solicitor stated they were “neutral”. It is quite clear from the Skeleton that the Guardian did not consider the test of necessity in Part 25 to have been met, but still remained neutral on the application. Guardians, and the Children’s solicitors, play an important role in care proceedings in ensuring that the interests of the child are met by minimising delay and maximising the efficient use of resources, in particular by assisting the Court to “Make Cases Smaller”, see the President of the Family Division’s The Road Ahead. If it is clear to the Guardian and the Child’s solicitor that an application should be refused, then they should make that clear to the Court.

Having outlined the test and the meaning of necessity, the Court reminded everyone of the Advocates Gateway and the steps that advocates and the Court can take to make it easier for parents to follow proceedings and understand what is happening.

In deciding whether to allow an application for a psychologist to carry out a cognitive assessment, it is also critical to bear in mind the existence of the Advocates Gateway and the requirement for all those working with parents in care proceedings to be sensitive to their needs. I referred to the Advocates Gateway and the need for all those working in this part of the justice system to be familiar with it and apply its principles in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 at [46]. It would only be appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates Gateway was plainly insufficient.
It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway.
Conclusions

This application does not come close to meeting the test of being “necessary” to resolve the proceedings, and in my view should never have been made. The fact that Mr Leach referred to taking a “belt and braces” approach indicates strongly that the proper test was not being considered either by counsel when she advised or by the solicitors when they made the application. Unfortunately, such misconceived applications are exceedingly common, particularly in respect of applications for psychologists to undertake cognitive assessments.
Such applications waste considerable resources, both in the courts, but also in the local authorities and Cafcass when they lead to unnecessary hearings and unnecessary expense. It is important that they are not granted without the Court properly addressing the correct test.
Mr Leach referred to a psychological assessment being useful in determining what support the Mother would need to help care for the child in the future. But that is not the purpose of the Part 25 application. Further, and in any event, that type of analysis is one that all social workers should necessarily be very familiar with. There was again nothing in this case which justified going beyond normal good social work practice.
A test of necessity does not mean that a report would be “nice to have” or might help in determining what psychological support the parent might need in the future. That is not necessary to resolve the proceedings.
For all these reasons I refuse the application for a psychological assessment.

The intermediary case referred to above, is also a Lieven J authority, and it is a very important one. I did mean to write about it last month, so it is a good place to pick up on it here.

The Court looked at the Court of Appeal guidance in a criminal case  R v Thomas (Dean) [2020] EWCA Crim 117. and said that the same principles outlined there apply.

The following principles can be extracted from this passage:
a. 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. Thomas [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.
b. The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case, Thomas [36];
c. Intermediaries should only be appointed if there are “compelling” reasons to do so, Thomas [37]. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549 at [29];
d. 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 defendant can effectively participate in the trial, Thomas [37];
e. The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];
f. If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];
g. At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that “evidence is adduced in very shortly phrased questions” and witnesses are asked to give their “answers in short sentences”. This was emphasised by the Court of Appeal in R v Rashid (Yahya) [2017] 1 WLR 2449.
All these points are directly applicable to the Family Court. Counsel submitted that there was a need for intermediaries because relevant parties often did not understand the proceedings and the language that was being used. However, the first and normal approach to this difficulty is for the judge and the lawyers to ensure that simple language is used and breaks taken to ensure that litigants understand what is happening. All advocates in cases involving vulnerable parties or witnesses should be familiar with the Advocates Gateway and the advice on how to help vulnerable parties understand and participate in the proceedings. I am reminded of the words of Hallett LJ in R v Lubemba [2014] EWCA Crim 2064 at [45] “Advocates must adapt to the witness, not the other way round”. A critical aspect of this is for cross-examination to be in short focused questions without long and complicated preambles and the use of complex language. Equally, it is for the lawyers to explain the process to their clients outside court, in language that they are likely to understand.
Finally, it is the role of the judge to consider whether the appointment of an intermediary is justified. It may often be the case that all the parties support the appointment, because it will make the hearing easier, but that is not the test the judge needs to apply.

Practitioners are referred specifically to that first principle :- a. It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial.

It does not seem to have been exceptionally rare for that to happen in any case involving even a request for an intermediary to develop into that. We shall see how it plays out.