S (Vulnerable Parent: Intermediary)

Under Family Procedure Rules 2010, the court must assess vulnerability, the likely effect on participation and evidence, and whether participation directions are necessary. Capacity to conduct litigation is distinct from vulnerability and is not determinative. The assessment must address the individual’s actual circumstances and the arrangements for the hearing. A remote or hybrid hearing may create additional barriers for a person with a learning disability, including the loss of visual cues and the demands of following information through several media. An intermediary assessment or appointment is not automatic, but may be necessary to secure effective participation and a fair hearing.

In care proceedings concerning T, the local authority sought orders that would separate the child from her mother and lead to adoption. The mother had a learning disability and extremely low cognitive functioning. Psychological evidence recommended simple language, short questioning and regular breaks. A later opinion supported an intermediary.

The Central Family Court accepted that the mother was vulnerable and made participation directions, but refused an intermediary assessment and appointment. It proposed a hybrid final hearing, with the mother attending in person and other participants potentially appearing remotely. The mother appealed, contending that the judge had applied the wrong approach and had not adequately considered the implications of the hybrid hearing for her participation.

1. Appeal allowed. The court set aside the refusal of an intermediary assessment and appointment. It ordered the identified registered intermediary to assess the mother, report before the further hearing, attend that hearing remotely to explain recommendations, and, unless otherwise ordered, attend the final hearing to assist the mother.

2. Part 3A of the Family Procedure Rules 2010 requires the court to decide whether a person is vulnerable, whether vulnerability is likely to diminish participation other than when giving evidence, whether it is likely to diminish the quality of evidence, and whether participation directions are necessary. The judge had not confused vulnerability with protected-party status. The mother’s capacity to give instructions was therefore relevant background, but not the governing test.

3. The decisive error was the failure to consider the application in the context of the proposed hybrid hearing. The court had to adapt to the needs of the lay party and ensure that she could participate effectively both inside and outside the witness box. For a person with a learning disability, remote questioning may remove valuable visual cues, while a hearing conducted through more than one medium may add to difficulties in understanding and retaining information.

4. The judge had not sufficiently addressed those additional factors. Refusing an assessment deprived the court of advice about the communication measures that might be required. The intermediary’s role was communication support, not merely emotional support, although emotional reassurance would not undermine that role. In the circumstances, including the expert advice and the gravity of the proposed orders, the criteria for appointment were met.

5. The decision does not establish that every parent with a learning difficulty, or every vulnerable participant in a remote or hybrid hearing, requires an intermediary. Each decision remains case-specific and must apply the Rules and guidance to the individual circumstances. The court referred to Re N (A Child) [2019] EWCA Civ 1997 as illustrating the fair-trial purpose of the participation regime.

• Court of Appeal (Civil Division) — allowed the mother’s appeal, set aside the refusal of an intermediary assessment and appointment, and made directions for an assessment and intermediary assistance: [2020] EWCA Civ 763.
• Central Family Court — Her Honour Judge Caroline Wright found that the mother was vulnerable and made participation directions, but refused an intermediary assessment and appointment.