M (A Child: Intermediaries) [2025] EWCA Civ 440 (10 April 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/440.html
Court of Appeal dealing with a case in which the trial Judge had refused an intermediary, following a line from the High Court authority on intermediaries, suggesting that it would be ‘exceptionally rare’ for an intermediary to attend throughout and there should be ‘compelling reasons’ if so.
The Court of Appeal say that Judges considering applications for intermediaries should apply the Practice Direction and amended FPR and not import legal principles from other jurisdictions such as crime (as had been done in the High Court authority – which is now no longer an authority…)
As the present case illustrates, the Family Court is under pressure. In care proceedings, the statutory framework provides that proceedings must be timetabled for disposal within 26 weeks, with time only being extended where that is necessary to enable the court to resolve the proceedings justly: Children Act 1989 sections 32(1) and (5). The President of the Family Division, as Head of Family Justice, has approved a number of necessary initiatives to support the court in carrying out its obligations. At the same time, there is a risk that pressure in any system is disproportionately felt by those least able to bear it. Whatever may have been the situation in the past, it is now understood that the court must, so far as practicable, adapt its procedures to achieve fairness for vulnerable individuals, in particular by ensuring that all participants are on an equal footing in the light of the importance and complexity of the issues.
It was this appreciation that led Parliament to introduce new provisions to the FPR on 27 November 2017. They appear as Part 3A and Practice Direction 3AA. They were further expanded in 2022 to reflect the Domestic Abuse Act 2021 in the case of victims of domestic abuse. These provisions are a comprehensive code, designed to strike a fair balance between the rights of vulnerable individuals and the demands of the system. They are of fundamental importance to the administration of family justice: Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8; [2022] 2 FLR 466; [2022] All ER (D) 55 (Jan), per Baker LJ at [38]; see also the foreword to the Family Justice Council Guidance on Neurodiversity in the Family Justice System for Practitioners of 30 January 2025, where Sir Andrew McFarlane P wrote that equal access to justice is fundamental to a functioning and fair system, and that the failure to recognise and accommodate neurodivergence leads to parties, witnesses and children not being able to participate fully within the family justice system.
Part 3A and Practice Direction 3AA provide the court with a framework. That is an aid to, and not a substitute for, the court’s own judgement about whether a person is to be regarded as vulnerable and, if so, what measures may be needed to achieve procedural fairness. Some aspects of the provisions concern children, victims of abuse, or protected parties who lack mental capacity. On this appeal, we are not directly concerned with these classes of individual, but the underlying principles are the same.
The court’s duty to identify any party or witness who is a vulnerable person begins at the earliest possible stage of the proceedings and continues until their resolution – FPR rule 3A.9(1) and PD3AA paragraph 1.3. All parties and their representatives must work with the court and each other to ensure that each vulnerable party and witness can participate in the proceedings and give evidence without being put in fear or distress: PD3AA paragraphs 1.4 and 3.1.
In a case where it is relevant, the court will ask itself these questions:
(1) Is a party or a witness a vulnerable person, having regard to the matters set out in FPR rule 3A.7 and the practice direction? – FPR rule 3A.3.
(2) If so, is the party’s participation in the proceedings (other than by way of giving evidence) likely to be diminished by reason of vulnerability and, if so, is it necessary in order to achieve a fair hearing to make one or more participation directions? – FPR rules 3A.4 and 3A.7 and PD3AA paragraph 1.2.
(3) Is it likely that the quality of evidence given by a party or witness will be diminished by reason of vulnerability and, if so, is it necessary in order to achieve a fair hearing to make one or more participation directions, as determined at a ground rules hearing? – FPR rules 3A.5 and 3A.7 and PD3AA paragraphs 1.2 and 5.2.
A decision about whether a person is vulnerable calls for a broad evaluative assessment that takes account of the characteristics of the individual and of the proceedings. If vulnerability exists, it is a gateway to the making of a participation direction, but there is a wide spectrum of vulnerability, and the court will carry forward its assessment of the nature and extent of vulnerability in the individual case into its assessment of whether participation in proceedings or the quality of evidence is likely to be diminished as a result. At that stage, it considers the range of participation directions available to it and determines which ones may be necessary in the circumstances of the individual case.
In proceedings involving a vulnerable person, the court order must set out the reasons why participation directions have been made or not made – FPR rule 3A.9.
These are case management directions that are firmly in the province of the judge. A considered decision within the framework of FPR Part 3A is most unlikely to be disturbed on appeal.
I turn to the provisions relating to intermediaries.
Intermediaries
Intermediaries are communication specialists. In family proceedings, their function is to communicate and explain questions asked of vulnerable people or answers given by them – FPR rule 3A.1.
Where the court has found that a person is vulnerable and that their participation and/or quality of evidence is likely to be diminished as a result, it comes to what is likely to be the critical question, namely whether it is necessary to approve the appointment of an intermediary in order to achieve a fair hearing, as opposed to making some other form of participation direction.
Intermediaries are not expert witnesses, and are not appointed under Part 25 of the FPR. However, the decision about whether an individual should have an intermediary is an important matter, and the court should approach it with formality. FPR rule 3A.10 supposes that an application will be made in the document that originates the proceedings or by a later Part 18 application. The application must explain what measures are sought and why each of them would be likely to improve participation or the quality of evidence – FPR rule 3A.10 and PD3AA paragraph 6. If the court exercises its power to dispense with the filing of a formal application, it should ensure that it has this information by other means.
If an intermediary assessment is granted, and the recommendation is for intermediary assistance, it should again be made clear what actual order is being sought. In particular, there should be clarity about what hearings or parts of hearings an intermediary would attend, and whether it is suggested that an intermediary is required for other legal meetings inside or outside the court building. The provision of a draft order will assist. Breaking matters down in this way reduces the risk of unsound ‘all or nothing’ orders being made. The court will no doubt seek to avoid making repetitive orders, but may give directions that last for certain hearings only, and revisit and revise directions in the light of experience.
The rules and practice direction show that (as with other participation directions) the primary focus of an intermediary appointment is to assist with communication within the courtroom, and in particular to enable the vulnerable person to give their best evidence. However, as seen from FPR rules 3A.1 and 3A.4, PD3AA paragraph 3.1, participation directions are not limited to these functions. The last of these provisions requires that, when considering whether the participation of any party or witness in the case is likely to be diminished by reason of vulnerability, the court should consider the ability of the party or witness to
“a) understand the proceedings, and their role in them, when in court;
b) put their views to the court;
c) instruct their representative/s before, during and after the hearing; and
d) attend the hearing without significant distress.”
Moreover, a party’s ‘participation in proceedings’ includes giving instructions and making written statements, a process that requires questions and answers. The witness statement of a witness called to give oral evidence will stand as their evidence in chief unless the court directs otherwise – FPR rule 22.6(2). Under FPR rule 3A.5, the court must consider whether the ‘quality of evidence’ given by a party or witness is likely to be diminished by reason of vulnerability: this cannot sensibly be limited to oral evidence. There may therefore be circumstances in which an order for intermediary assistance will be sought for a legal conference away from court, but this will call for a separate exercise of judgement. The fact that participation in proceedings extends beyond the courtroom does not absolve the court from considering whether an intermediary is in fact necessary for that purpose in the individual case. As noted above, the experience of a vulnerable person in a solicitor’s office, where matters can proceed at their own pace, is likely to be different from their experience of a more formal courtroom setting, and what is necessary in one setting may be unnecessary in the other.
In making its judgement about vulnerability and participation directions, the court must have regard in particular to the matters listed in FPR rule 3A.7 when deciding what is necessary in the case before it. There will often be a cognitive assessment. If it recommends the use of an intermediary, it must evidence why that is necessary and explain why alternative means are inadequate. It would be helpful for the report to consider the party’s participation at case management hearings, legal conferences, and when giving evidence. If the court then approves an intermediary assessment, the cognitive report should be supplied to the assessor. The intermediary assessment itself will then form part of the evidential picture in relation to vulnerability and measures.
The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate. Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act. The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement. As the process is a collaborative one – PD3AA paragraphs 1.4 and 3.1 – the court may also benefit from submissions made by other parties, who may also have their own interest in the decision. The local authority and Children’s Guardian will wish to ensure that the proceedings rest on firm foundations and, depending on the case, individual parties may have their own perspectives.
Decision-making about intermediaries should not be protracted, and the court’s conclusions should be capable of being expressed quite shortly.
The Court of Appeal specifically say that the references to criminal authorities in the Lieven J case were ones that they did not find helpful
I do not consider the decision in Thomas to be an aid to the interpretation of Part 3A of the FPR. Part 3A was the product of the Vulnerable Witness and Children Working Group, whose final report in February 2015 heralded a greater awareness of the needs of vulnerable persons in family proceedings. The guidance in Thomas drew on the 2015 Criminal Practice Direction, which provided at 3F.13 that directions to appoint an intermediary for a defendant’s evidence will be rare and, for the entire trial, extremely rare. These references did not appear in the Criminal Procedure Rules 2020, nor in the current 2023 Criminal Practice Direction, which addresses intermediaries at 6.2.
and that:-
- There is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality. Frequency is not a test, and nor is exceptionality. Similarly, the introduction of tests of “compelling reasons”, or of adjournments for lack of an intermediary being “unusual” or “very unusual”, beckon the court to short-circuit its consideration of the evidence in the individual case.
suesspiciousminds 