James MacDougall v KE & Ors.

An adjournment of family proceedings should not be granted merely because related criminal proceedings have been postponed. The court must balance the need for effective participation and a fair trial against the interests of children and other parties in the prompt resolution of proceedings.

An intermediary is not automatically required because one has been appointed in criminal proceedings. Family proceedings differ from criminal trials in formality, questioning and judicial intervention. Where an intermediary is not essential, the judge may instead adopt protective measures, including a more proactive approach, regular breaks, simplified questioning and arrangements for evidence. The issue must remain under review throughout the hearing.

The applicant father sought contact or variation of existing contact arrangements in private family proceedings. A non-molestation application was also before the court. The matter was listed for a two-day final hearing.

The father applied to adjourn the final hearing because related criminal proceedings had been postponed and because an intermediary appointed in those proceedings was unavailable. He relied on an intermediary assessment addressing his learning difficulties and autistic spectrum condition. The respondents and the Children's Guardian opposed the adjournment and the appointment of an intermediary.

The central issues were whether the family hearing should be postponed and whether an intermediary was necessary to protect the father's interests and secure a fair trial.

1. The applications were refused. The court declined to adjourn the final hearing and declined to appoint an intermediary.
2. The postponement of the related criminal trial did not justify delaying the family proceedings. The criminal trial had already been adjourned more than once, its further progress was uncertain, and the family proceedings had already caused substantial stress to the mothers and, through them, the children. The court considered that the children’s and other parties’ interests required the family matter to proceed.
3. An intermediary appointed in criminal proceedings is not thereby required in related family proceedings. Family proceedings are less formal, involve different forms of questioning and permit a judge to intervene to ensure that questioning is conducted appropriately. The recommendations in the intermediary assessment were matters which a properly informed judge should address in any event.
4. On the evidence, an intermediary was not essential to protect the father’s interests. The court rejected the suggestion that a medically qualified intermediary was required. The father’s learning difficulties and autistic spectrum condition could be accommodated through judicial case management and, preferably, legal representation.
5. If the father remained unrepresented, the judge would adopt protective measures to secure a fair trial. These could include a more proactive judicial role, frequent breaks, simplified and carefully structured questioning, and appropriate arrangements for giving evidence. The court retained power to adjourn if it became clear during the hearing that a fair trial could not be achieved.
6. The court considered representation important and intended to communicate with the Legal Aid Agency. It also considered facilities for the father to give evidence from a separate room if appropriate.