Case Law Update re: Appointment of an Intermediary

Children – Public Law

02 April 2024

Re O & Y (Parents with Learning Disability: Intermediaries) [2024] EWFC 7

Two recent cases which look at the appointment of an intermediary and provide welcome, if potentially confusing and contradictory, guidance on the use of intermediaries in care proceedings.

In West Northamptonshire Council Mrs. Justice Lieven, DBE, gave guidance on the issues relating  to the appointment of a deaf intermediary for the mother, who was profoundly deaf, during a final hearing.

The factual background is not necessarily important. The matter was listed before the High Court primarily to deal with whether a wasted costs order should be made following the non-attendance of the intermediary but guidance was provided on the use of intermediaries in care proceedings.

The subject child was 2 1/2 years old and the proceedings had been prolonged for a number of reasons relating to assessments and the need to find an appropriately trained social worker, expert psychologist and a BSL interpreter.

In Re O & Y HHJ Middleton-Roy gave judgment only a few days after Mrs Justice Lieven in the West Northamptonshire Council case.

Again the full facts of the case are not necessarily important. The case involved two children aged 7 and 9. Both parents were exceptionally vulnerable adults and had learning disabilities and communication issues and were described as functioning within the extremely low range consistent with the bottom 1st percentile. The father had problems with his physical health and the mother with her mental health.

There were issues relating to domestic abuse.

There were cognitive and psychological assessments of both parents and both were assisted by intermediaries.

Reminder of the Law (as summarised by Mrs Justice Lieven in West Northamptonshire):

Para [41]: The position in respect of the appointment, qualification and duties of intermediaries in the family justice system is not clearly set out in either the Family Practice Rules or in any Practice Direction.

Rule 3A.1 of the FPR defines an intermediary as a person whose function is to—

a) communicate questions put to a witness or party;

b) communicate to any person asking such questions the answers given by the witness or party in reply to them; and

c) explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions.

Para 42: There is no further guidance on their appointment or role. However, in the criminal justice system the Criminal Practice Directions 2015 have detailed consideration to the appointment of intermediaries, including steps to assist defendants in their effective participation in the proceedings.

Referring to R v Thomas (Dean) [2020] EWCA Crim 117, (paras 43/44), where the Court of Appeal gave detailed consideration to the appointment of intermediaries, and how they should be used in criminal proceedings (my emphasis), Mrs Justice Lieven summarised the following principles:

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 will be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30].

g) In Cox [21] 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.

In summary Mrs Justice Lieven said “All these points are directly applicable to the Family Court”. [46].

 Counsel had 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 Lubemka [2104] EWCA Crim 2064 at [45] “Advocates must adapt to the witness, not the other way around”.

 A critical aspect of this is for cross examination to be in short, focused questions without long and complicated preambles in the use of complex language. Equally, it is for the lawyers to explain the process to their clients, outside court, and language that they are likely to understand.

 [47] Finally, it is the role of the judge to consider whether the appointment of an intermediary is justified. It may be the case that all the parties support the appointment, because it will make the hearing easier, that is not the test the judge needs to apply.

(My emphasis).

In Re O & Y HHJ Middleton-Roy said it was “convenient at this point to identify why intermediaries were essential to the fair determination of this case”, [31]

 The Judge’s comments are set out fully below as a contrast to the above comments by Mrs Justice Lieven:

 On the specific facts of this case, having regard to both parents’ considerable vulnerabilities, individual cognitive profiles and specific communication needs, the assistance of an intermediary for each parent was a compelling, necessary and wholly essential measure to ensure that each parent could participate fully in the court process and throughout the Final Hearing in a way that was meaningful and informed, so as to ensure that their Article 6 rights to a fair trial were protected, [32].

It is well established that in the Family Court, intermediaries perform an extremely important function in ensuring a fair hearing for highly vulnerable people. Intermediaries are impartial communication specialists, whose primary responsibility is to facilitate and enable complete, coherent and accurate communication between all parties, and to ensure the vulnerable person’s understanding and participation in the proceedings. This includes making an assessment and reporting to the court, orally and in writing, or both, about the communication needs of the vulnerable person, and the steps that should be taken to meet those needs.

It is well established that intermediaries can be invaluable in giving vulnerable parties a voice in the Family Justice system, and in turn, providing them with the quality of access to justice. It is important to appreciate that the intermediary is there to assist and advise the Judge.

Intermediaries are expected to prevent miscommunication from arising during the hearing and intervene actively when miscommunication may or is likely to have occurred or to be occurring.

During the hearing, it is almost always necessary to a regular breaks with sufficient time for the intermediary to explain to the vulnerable person what has happened and what is about to happen (‘explanation time’) in addition to time for a proper break (‘rest time’). Intermediaries have a discreet and important role and specialism, [33]

HHJ Middleton-Roy also gave some guidance on the use of “whole trial” intermediaries, commonly referred to in the criminal jurisdiction.

The Judge said he was clear that a “whole trial” order for assistance by the intermediary throughout this Final Hearing was necessary to enable the parents to have a full and clear understanding of all the issues at play, the process by which the contested, factual and welfare issues would be resolved and to facilitate the parents’ full and unencumbered participation in the proceedings, and circumstances where the State was proposing to interfere with their right to private and family life in the most fundamental way by potentially removing their children from their care for the remainder of their childhood.

Unlike the adversarial nature of criminal proceedings, the inquisitorial, problem-solving nature of these care proceedings in the Family Court demanded that no form of adaptations to the Court process lesser than a “whole trial” intermediary order would suffice in the context of these parents’ vulnerabilities, ensure that they were not disadvantaged as a result of their cognitive, communication and learning difficulties.

Search steps were in the furtherance of the Family Procedure Rule 1.1 and the overriding objective of enabling the Court to deal with the case justly, having regard to the welfare issues involved, including ensuring that the case was dealt with expeditiously and fairly and ensuring that the parties were on an equal footing.

Such order was necessary, in this Court’s judgment, to uphold the essential principles that the Courts must take all steps possible to ensure that people with a learning difficulty are able to actively participate in decisions affecting their lives and the Court must take steps to ensure that there are no barriers to justice within the process itself.

On the fact that this case, there could be no proper justification for any alternative order directing the intermediaries to assist for only part of the process, [34].

 The parents’ difficulties were summarised as follows:

 In this case, the accredited intermediaries undertook a thorough, specialist and sophisticated, written assessments of both parents specific communication needs……. The parents combined difficulties in communication included difficulty maintaining attention and concentration, difficulty, recalling specific dates and times, limited auditory working memory capacity, difficulty understanding low frequency vocabulary and court-specific terminology, difficulty processing and reliably responding to complex questions, difficulty processing and retaining verbal information, difficulty understanding non-literal language, difficulty providing detailed narrative, difficulty processing written information, consistently processing sentences exceeding three key words, difficulty understanding and responding appropriately to grammatically complex questions including questions containing multiple-parts and tag questions, understanding unfamiliar, figurative language, retaining large volumes of verbally presented information, reliably understanding written information and expressing themselves clearly, [35].

 During the Final Hearing, the intermediaries gave the Court clear and insightful advice at several junctures. They sat next to the mother and the father and checked on their understanding as the hearing unfolded. Their role is specialised and discreet from that of counsel.

The combination of the skill of specialist counsel with their experience, knowledge and understanding of the Advocates Gateway and its recommendations in helping vulnerable parties, together with the separate role of the intermediaries was indispensable to ensure a fair determination of the case before the Court such that both parents could fully engage with and understand the Court process for the ultimate benefit of the subject children, [36].

 In summary a reminder to consider the following:

The lack of any clear guidance on the  use and appointment of intermediaries;

The distinction between cases in the Family and the Criminal Courts;

The High Court decision by Mrs Justice Lieven to follow the practice in the criminal court;

The need to consider “whole trial” Intermediary orders;

The need to be familiar with the Advocates Gateway;

The need for expert reports on the parents’ needs and difficulties and cognitive abilities;

That the decision is always one for the judge not the experts or the agreed view of the parties.

With regard to the necessity test for cognitive assessments Mrs Justice Lieven has given further guidance in West Northamptonshire Council v The Mother (Psychological Assessments) [2024]  EWHC 395 but this may need a separate article.

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