Intermediaries and the test of necessity

A recent Court of Appeal ruling has emphasised that there is no warrant for overlaying the test of necessity when it comes to the appointment of intermediaries. Holly Hilbourne-Gollop examines the judgment.

On 10 April 2025 the Court of Appeal handed down judgement in Re M (A Child: Intermediaries) [2025] EWCA Civ 440 in respect of an appeal arising from the refusal of a Mother’s application for intermediary assistance in care proceedings. For the purposes of the appeal, the Association of Lawyers for Children and the Family Law Bar Association were intervened.

Lord Justice Peter Jackson dealt with the appeal and considered the recent decisions in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam) and Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam). The Court of Appeal was critical of the unnecessary polish added to the already clear test contained within Part 3A of the Family Procedure Rules 2010 and Practice Direction 3AA, issuing clear guidance, that “there is, in any event, no warrant for overlaying the test of necessity with concepts of rarity of exceptionality” [41].

Background to the appeal

In January 2024, the Mother’s baby had suffered a skull fracture at the age of ten months. The baby had been living with the Mother, Father, Maternal Grandmother and teenage Maternal Uncle. On discharge from hospital, he was placed with other family members, due to the injury being unexplained. Proceedings were issued on 12 April 2024, on the basis that the responsibility for the injury lay with one of the members of the household.

The Mother was in her early 20s, having been diagnosed with ADHD, oppositional defiant disorder and Asperger’s syndrome. In the initial social work statement, the Mother was described as presenting with cognitive difficulties with the social worker being of the view that she was likely to require significant support to participate in the proceedings. Within the Guardian’s initial analysis, similar difficulties were noted.

An eight-day fact-finding hearing was due to begin on 17 February 2025. That fact-find hearing has been adjourned to September 2025, for reasons unconnected to the appeal.

On 12 May 2024, Dr John Dowsett, consultant clinical psychologist, filed a cognitive assessment of the Mother, containing the following passages:

“I think she would find giving evidence very stressful given her general personality and cognitive processing issues. I am suggesting an intermediary assessment as being essential in this case.”

“Psychometric testing established [she] does not have a general learning disability as there are some aspects of her functioning particularly her visual spatial processing, psycho-motor speed and her retention of visual information which appeared to be quite adequate. On the other hand, she is clearly more vulnerable in the areas of verbal comprehension and auditory working memory as discussed above. She has a very limited vocabulary and knowledge of words. Her limited auditory workspace means that she will quickly feel overwhelmed with too much verbal or numerical information given to her and may be prone to information being lost or to her becoming distracted, overwhelmed or disengaged.”

“[She] is likely to find the idea of giving evidence to a court extremely anxiety-provoking both as a function of her personality but also her processing difficulties and her autistic spectrum diagnosis. I think there would need to be careful consideration by the court and an intermediary assessment to consider the best way forward in this area. If she is going to be questioned the court will need to be particularly sensitive to her level of anxiety, distractibility and fatigue. She should be questioned with longer breaks and for shorter periods of time. Care will need to be taken in terms of the vocabulary used with her and in using sentences that are not overly long and pose additional stresses on her auditory working memory.

“I think she should have an intermediary in court. Her mother is also very keen to support her.”

On 14 June 2024, the Court granted the Mother’s application for an intermediary assessment. A thorough assessment followed in which it was recommended that Mother be assisted by an intermediary throughout proceedings and at conferences. It was identified that:

“These difficulties are likely to significantly impact her effective participation in legal proceedings and, in my professional view, cannot be accommodated by adjustments which can be practically implemented by the court in lieu of an intermediary (such as those set out in Practice Direction 3AA, including use of techniques provided in The Advocate’s Gateway).”

On 14 August 2024 at a further case management hearing, the Court approved the attendance of an intermediary for that hearing and future hearings, with the need for the attendance of an intermediary at the fact-find hearing being considered at a pre-trial review.

The pre-trial review took place on 15 January 2025, being listed at 10.00am and lasting for an hour, forming part of a busy Court list. The most pressing question for the Court was whether the proceedings could be kept on track. Further directions were made, with a further pre-trial review being listed on 10 February 2025.

The Court of Appeal noted that “the Mother’s application for an intermediary was just one matter for determination”, with no more than ten minutes being afforded to the issue [64]. Dr Love, representing the Mother, outlined her argument in support of the Mother’s application for an intermediary. The Court was directed to the attendance of Ms Bradley, the intermediary, to provide further assistance. The Judge stated he did not need further information and moved directly to give his decision without inviting submissions from the other parties.

The first instance decision

The Judge recounted the purpose of an intermediary and first asked himself whether the Mother was a vulnerable individual, concluding with no doubt that she was. He addressed the question of whether it was necessary for Mother to have an intermediary to enable her to participate fairly and give her best evidence, nothing that an intermediary is “just one of the many tools in a Court’s armoury” extracting the propositions from the recent decisions in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam) and Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) [67].

The Judge then gave his decision:

“The recommendation is that [the mother] is assisted by an intermediary throughout the proceedings and 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.”

The appeal

On behalf of Mother, it was contended that the decision was wrong for two reasons:

(a) The legal principles were not correctly applied; and

(b) The Judge did not properly consider the available evidence about the Mother’s vulnerabilities of the facts and issues in the case.

The appeal was supported by the local authority, the Children’s Guardian and the Maternal Grandmother.

Lord Justice Peter Jackson considered the appeal. Whilst noting the Judge’s good intentions and the pressures upon him, he determined that the conclusion that it was not necessary for the Mother to have the assistance of an intermediary was wrong.

He noted the Judge’s reliance on obiter statements from the High Court focussing on the rarity of cases in which an intermediary should be ordered:

“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. I have explained why that is an error of approach, but it is not one for which the judge can be criticised” [72].

A useful summary of the relevant provisions and authorities relating to intermediaries is set out at paragraphs 21 to 51. He noted that in the three appeals regarding intermediaries since Part 3A came into effect, “this Court has taken its provisions at face value. Considering that the regulatory framework is recent, it is unpromising ground for a wider exercise in judicial interpretation” [36].

He found, “that is, however, what happened in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam)” in which Mrs Justice Lieven cited the criminal case of R v Thomas (Dean) 2020 EWCA Crim 117, observing that in her view it was applicable to the consideration of the same issues in the family justice system. Lord Justice Peter Jackson set out the principles extracted by Mrs Justice Lieven, which all practitioners have become familiar with:

(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 para 36.

(b) Intermediaries should only be appointed if there are “compelling” reasons to do so, Thomas para 37. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549; [2012] 2 Cr App R 6, para 29;

(c) 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 para 37;

(d) The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. Thomas para 38;

(e) 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 para 30;

Lord Justice Peter Jackson, in this appeal, has confirmed that:

“40. 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.

41. 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.”

Lord Justice Peter Jackson went on to consider the subsequent case of Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam), in which Mr Justice Williams stated “in rare cases an intermediary may be necessary to assist the party to understand the evidence of others. In very rare cases an intermediary may be necessary to enable the party to consider the written evidence and to give instructions” [21]. Lord Justice Peter Jackson was clear, that “these projections, including references to the “very rare” or “rare” cases, are not a substitute for a straightforward application of the rules”.

He went on to express the same reservations in respect of guidance which was in line with the above decisions within the Local Practice Note: Adhering to the Public Law Outline in London issued on 28 November 2024 and Practice Guidance: The Use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court issued by the President of the Family Division on 23 January 2025.

As a result of the Judge’s misdirection, the Court of Appeal found the Judge had paid “insufficient attention to the Mother’s difficulties” [73]:

1. He did not square the evidence about the mother’s functioning with her ability to participate meaningfully and without undue distress. The reports of Dr Dowsett and Ms Bradley were diligent and undisputed, and they showed that the factors in rule 7(b)(i), (f) and (j) were engaged. Their opinions did not in any way bind the judge, but they needed closer consideration and, if they were to be rejected, some explanation.
2. As is often the case in care proceedings, counsel would be conducting the fact- finding hearing without the benefit of a representative from her instructing solicitors, meaning that she would have to assist the mother whilst calling and cross-examining witnesses. That was something to which the judge should have had regard. When seeking permission to appeal from this court, Dr Love submitted with some justification that the order had made her task in preparing for and conducting the trial “near impossible”.
3. The decision not to seek the views of the other parties was also unhelpful to the judge, as he would have found that each of them – for their own reasons – supported the mother’s application.
4. It was also open to the judge to have checked any provisional view with the intermediary assessor, who was in court. Following the decision, the assessor wrote to the mother’s solicitors, confirming the assessment report with the benefit of experience and explaining why lesser means of support would not be adequate for their client. We did not admit the letter on appeal, but the information in it was available to the judge.
5. In the same way, the judge did not take account of the nature and gravity of the proceedings for the mother under rule 7 (c), (d) and (e). 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.
6. The judge ought to have considered whether it was necessary for the mother to have an intermediary in relation to the preparation of her written evidence.
7. The judge had directed that the pre-trial review would be used as a ground rules hearing, but it did not in fact perform that function. When refusing an intermediary for the whole fact-finding hearing, he did not put in place any alternative arrangements. The possibility of intermediary support for some purposes, and in particular for the mother’s own evidence, was not considered, and other forms of adjustment were mentioned only in passing. There was no determination of what such arrangements would be and why they would be sufficient. A general assurance that the court would “strive at all times to ensure that the mother participates and understands” was not adequate.
8. Finally, 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.

The appeal was therefore allowed, with the Mother’s application for an intermediary being granted.

Conclusion

Going forward, the Court of Appeal are clear, that when considering an application for an intermediary assessment the Court will be expected to apply the framework provided for by Part 3A and Practice Direction 3AA.

As set out by Lord Justice Peter Jackson:

(a) The decision about whether an individual should have an intermediary is an important matter, and the Court should approach it with formality [23].

(b) If an application is made for an intermediary, it should make clear what actual order is being sought [24].

(c) The assistance of an intermediary can be to assist with communication both within the courtroom but also away from the court room, the differing levels of assistance required will call for a separate exercise of judgement [25].

(d) The Court must have regard to the matters listed in Rule 3A.7 when deciding what is necessary in the case before it [26].

(e) 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 [26].

(f) The Court is entitled to also take into account the parties’ submissions to whatever extent they consider appropriate [27].

(g) 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 the vulnerable person may be well placed to the assist the Court from their own interactions and the Court may also benefit from submissions from other parties, such as the local authority and the Children’s Guardian who will wish to ensure the proceedings rest on firm foundations [27].

(h) By applying the principles above, “the Family Court will discharge its duty to ensure procedural fairness in cases involving vulnerable persons” [30].

Re M (A Child: Intermediaries) [2025] EWCA Civ 440 confirms that there is no substitute for a straightforward application of the rules, with the recent concepts of ‘rarity’, ‘exceptionality’ and ‘compelling’ running the risk of misguided approaches to the test of necessity.

Holly Hilbourne-Gollop is a barrister at St Ives Chambers.