West Northamptonshire Council (acting via Northamptonshire Childrens Trust) v KA (Mother & Anor) (Intermediaries)

Intermediaries in family proceedings should be appointed only where necessary to secure effective participation. A whole-hearing appointment requires particularly careful scrutiny and must not be made on a precautionary or routine basis. The judge must consider both the individual’s communication needs and the nature of the particular hearing, including whether other adaptations would suffice. Expert recommendations assist but do not determine the question. Judges and advocates remain responsible for adapting the proceedings, using clear language, short questions, breaks and suitable explanations. Where the evidence shows profound and particular communication difficulties, including difficulties arising from interpretation into British Sign Language, a deaf intermediary may properly be required throughout a final hearing.

The local authority’s care and placement proceedings concerning a profoundly deaf mother had reached an adjourned five-day final hearing after the appointed deaf intermediary failed to attend. The court was asked whether a wasted costs order should be made against the intermediary and whether the order appointing a deaf intermediary should be varied.

The wasted costs issue was resolved after evidence explained the intermediary’s non-attendance. The central issue was whether the mother required a deaf intermediary for the entirety of the relisted final hearing, in addition to deaf interpreters, having regard to her deafness and other communication difficulties.

1. No wasted costs order. The intermediary’s non-attendance resulted from a tragic family incident which justified her absence. There was no proper basis for a wasted costs order.
2. Applicable principles. The definition of an intermediary in Family Procedure Rules r3A.1 provides the starting point, but the family rules contain little further guidance. The guidance in R v Thomas (Dean) [2020] EWCA Crim 117 was applicable by analogy because intermediaries serve the common purpose of securing effective participation and fair trial rights.
3. A whole-trial intermediary order is exceptionally rare and must not be made on a just-in-case basis. The judge must assess the individual’s needs in the context of the actual proceedings, and must consider whether compelling reasons exist and whether other adaptations would be sufficient. An expert recommendation is not determinative.
4. The court should consider practical alternatives, including short and focused questions, simple language, breaks, explanations outside court and other adaptations. The judge retains overall responsibility for fairness. Advocates must adapt to the vulnerable person, rather than expecting the person to adapt to ordinary advocacy.
5. Application. The mother’s communication difficulties were profound and extended beyond deafness. A hearing intermediary could not monitor communication directly in British Sign Language and there was a particular risk of misunderstanding. Although some parts of the hearing might have required less assistance, relying on lawyers to explain matters during breaks would be onerous and potentially ineffective.
6. The deaf intermediary was therefore necessary throughout the five-day final hearing. The existing order was continued, in particular because further delay would be highly detrimental to the child and the final hearing needed to be effective.