Court of Appeal hands down key ruling on appointment of intermediaries after finding judge was wrong to refuse assistance to vulnerable mother
The Court of Appeal has allowed a mother’s appeal against a judge’s refusal to grant her intermediary assistance in care proceedings, finding that the judge paid “insufficient attention” to the mother’s difficulties.
In M (A Child: Intermediaries) [2025] EWCA Civ 440, Lord Justice Peter Jackson concluded: “The available information clearly established that this vulnerable parent needed an intermediary, at least for the court hearings until the end of the fact-finding process”.
The Court of Appeal noted that in January 2024, the mother’s baby suffered a skull fracture at the age of ten months. He had been living in a household with both parents, his maternal grandmother and a teenage maternal uncle.
On discharge from hospital, the child was placed with other family members and, as the injury was unexplained, care proceedings were started.
The appellant mother is in her early 20s. At school, she was diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, and Asperger’s syndrome. She also suffers from anxiety and depression and is prescribed an antidepressant by her GP.
In the initial social work statement , the mother was described as presenting with cognitive difficulties. The social worker expressed the view that she was likely to require “significant support” to participate in proceedings.
At the time of the decision under appeal, an eight-day fact-finding hearing to determine how the child came by his injury was due to begin in February 2025.
Peter Jackson LJ noted: “The hearing has since been adjourned to September 2025 for reasons unconnected to the appeal.”
In January 2025, the judge conducted a pre-trial review ahead of the fact-finding hearing that was then due to begin. The mother’s application for an intermediary was one matter for determination.
Counsel for the mother submitted that the mother continued to need an intermediary both for the fact-finding hearing and in relation to the preparation of her written evidence in order to understand the proceedings and to give her best evidence.
It was noted that despite the use of simple language, the mother had difficulty in understanding matters and retaining information. The seriousness of the upcoming fact-finding hearing and the “lifelong implications” of the decision were also acknowledged.
Peter Jackson LJ noted that the judge first asked himself whether the mother was a vulnerable individual, and said he had “no doubt” that she was.
He then addressed the question of whether it was necessary for her to have an intermediary to enable her to participate fairly in the fact-finding hearing and to give her best evidence.
The judge’s decision was as follows:
“The recommendation is that [the mother] is assisted by an intermediary throughout the proceedings including any conferences relating to the case. It is said that she will have difficulty following the thrust of proceedings and providing clear informed instructions. [The mother]’s difficulties are set out in a tabular form: It is said that she continually fidgets, is easily distracted, has difficulty sitting for long periods, did not advocate for herself when she needed a break, has auditory working memory difficulties, difficulties understanding the majority of low frequency vocabulary, difficulties with court specific terminology, difficulties answering complex questions, difficulties processing and retaining simple passages, interpreting nonliteral language, difficulties pronouncing certain multisyllabic words and finally she is not able to retain key information and suffers from anxiety.
“As far as I am concerned an intermediary is not necessary for this trial. These matters that the intermediary assessor has set out are matters that are well within the capability of the Court to ensure that [the mother] is able to participate fully in the proceedings and give her best evidence. The Court can ensure, and will ensure, that questions are asked that are noncomplex, nonlegal and that [the mother] participates and understands. This Court is ever mindful of the vulnerabilities of those that appear before it and will strive at all times to ensure that they are given every opportunity to participate and it seems to me that an intermediary is not necessary in this case, bearing in mind the other directions that are available.”
Peter Jackson LJ observed that the judge’s order recorded that the application was refused, but did not contain reasons.
Counsel for the mother contended that the decision was wrong for two reasons: the legal principles were not correctly applied, and the judge did not properly consider the available evidence about the mother’s vulnerability or the facts and issues in the case.
The appeal was supported by the local authority, the Children’s Guardian and the grandmother.
In the Court of Appeal's ruling, Peter Jackson LJ summarised the approach to be taken in deciding whether and, if so, for what purpose to approve the appointment of an intermediary.
The Court of Appeal judge said:
(1) The court will exercise its judgement within the framework of Part 3A of the Family Procedure Rules 2010 (‘the FPR’) and Practice Direction 3AA. These provisions are not complex, and they require very little elaboration…..By following them, the court will steer a path between the evils of procedural unfairness to a vulnerable person on the one hand, and waste of public resources on the other.
(2) The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing. Decisions are person-specific and task-specific, and the introduction of other tests upsets the balance struck by the FPR and may draw attention away from the circumstances of the individual case.
(3) Efficient case management will assist sound decision-making in this area. There must be early identification of vulnerability where it exists. Intermediaries are not experts, but applications for intermediary support should be approached with similar procedural discipline. Different considerations may apply to different elements of the proceedings, and the court should normally require an application notice and/or a draft order that specifies the exact extent of the requested assistance.
(4) Correctly understood, the court’s powers are wide enough to permit it to authorise intermediary assistance for legal meetings outside the court building. However, support that is necessary in the courtroom may be unnecessary in a less pressured setting. Accordingly, the court should give separate consideration to any application of that kind.
(5) The Family Court is accustomed to using checklists when making procedural and substantive decisions. The mandatory checklist in FPR rule 3A.7 is an essential reference point to ensure that the factors relevant both to the individual and to the proceedings are taken into account. The weight to be given to them is a matter for the court, making a broad and practical assessment.
(6) An application for an intermediary must have an evidential basis. This will commonly take the form of a cognitive report and, if authorised, an intermediary assessment. Other evidence may come from the social worker or the Children’s Guardian. The court can also take account of submissions on behalf of the vulnerable person, and from the other parties, as they may have their own perspectives on the overall fairness of the proceedings. This reflects the collaborative nature of the task of identifying and making adjustments for vulnerability. Whatever the evidence and submissions, it is for the court, and not others, to decide what is necessary to achieve a fair hearing in the individual case.
(7) When considering whether an intermediary is necessary, the court will consider other available participation directions. In some cases they will be effective to secure fairness, so that an intermediary is unnecessary, or only necessary for a particular occasion, while in other cases they will not. The court is entitled to expect specialist family lawyers to have a good level of understanding of the needs of vulnerable individuals in proceedings and an ability to adapt their communication style. It will consider what can reasonably be expected of the advocates, and in particular of the vulnerable party’s advocate in the individual case, bearing in mind that professional continuity may not be guaranteed. Intermediaries should clearly not be appointed on a ‘just in case’ basis, or because it might make life easier for the court, but equally advocates should not be required to stray beyond their reasonable professional competence to make up for the absence of an intermediary where one is necessary.
(8) The rules provide that the reasons for a decision to approve or refuse participation directions for a vulnerable person must be recorded in the order. That can be done very briefly, and it is a further useful discipline.
(9) The approach described should ensure that intermediaries are reliably appointed whenever they are necessary, but not otherwise.
The judge noted that Part 3A and Practice Direction 3AA provide the court with a framework. He said: “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.”
Lord Justice Peter Jackson said that in a case where it is relevant, the court will ask itself these questions:
- 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.
- 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.
- 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.
The Court of Appeal judge said 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.”
Lord Justice Peter Jackson went on to review four Court of Appeal decisions, three first instance decisions, the Local Practice Note: Adhering to the Public Law Outline in London (November 2024) and the President of the Family Division’s Practice Guidance: The Use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court (January 2025).
Considering Lieven J’s ruling in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam), the Court of Appeal judge said that was “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.”
In relation to the two pieces of guidance, Lord Peter Justice Jackson again expressed reservations about the idea of rarity when it come to the appointment of intermediaries.
He added: “Any perception on the part of the senior family judges that intermediaries are being appointed too freely must be treated seriously. But as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.”
Considering the present appeal, Peter Jackson LJ first acknowledged the judge’s “good intentions” in relation to the fairness of the proceedings, and the pressures that were upon him.
However, he concluded that the judge’s finding that it was not necessary for the mother to have the assistance of an intermediary was wrong.
The Court of Appeal judge said: “In the first place, the judge clearly had the provisions of Part 3A well in mind and more than once stated that the test was one of necessity. However, he not unreasonably took account of the obiter statements of the High Court, which were to a different effect and focussed on the rarity of cases in which an intermediary should be ordered. That placed him in a difficult position and it is inescapable that he was strongly influenced by the emphasis on the asserted rarity of the order he was being asked to make.”
Peter Jackson LJ added: “The consequence of the misdirection is that it led the judge to pay insufficient attention to the mother’s difficulties, considered in the context of the proceedings.”
He observed that the decision of the judge not to seek the views of the other parties was “unhelpful”, as he would have found that each of them – for their own reasons – supported the mother’s application.
He also found that the judge “did not take account of the nature and gravity of the proceedings for the mother” under rule 7 (c), (d) and (e).
The Court of Appeal judge said: “On the basis of complex and extensive evidence, the court was being asked to attribute responsibility for her child’s injuries to her or to one of her close family members. One of a range of distressing possibilities was that the court’s findings would prevent her having the care of this child or any future children. The fact-finding process was emotionally charged and the proceedings were at a highly pressured stage. The judge did not sufficiently consider the impact of these matters on the presentation of the mother’s case and on her likely experience of the proceedings. He did not explain how it could be fair for her, or for her counsel, to be expected to manage without a key part of the support structure that had been provided at three case management hearings.”
Finally, Peter Jackson LJ observed: “As the reasons for refusing the application were not given in the order, the discipline in decision-making that this requirement is designed to reinforce was also absent.”
Allowing the mother’s appeal, the Court of Appeal substituted an order in the following terms:
- The appellant’s appeal from paragraph 2 of the Order refusing the appointment of an intermediary is allowed.
- An intermediary is hereby appointed for the appellant in these proceedings for:
- Any further case management hearings before the fact-finding hearing;
- The fact-finding hearing (including delivery of judgment); and
- Legal conferences between the appellant and her legal advisors at court on the above occasions.
Lord Justice Snowden and Lady Justice King agreed.
Lottie Winson
