X & Y (Intermediary: Practice and Procedure), Re

Intermediaries in family proceedings are an exceptional participation measure. The court must decide whether an intermediary is necessary to secure fair participation or the giving of best evidence. An intermediary should not be directed merely because it would improve the hearing, because an expert recommends it, or because the parties support the application.

The court must consider the individual’s difficulties in the context of the particular proceedings and examine whether fair participation can be achieved through other measures, including adapted language, focused questioning, breaks, and assistance from the legal team. Evidence is required to establish necessity. An assessment does not determine the issue: the decision remains one for the judge.

These care proceedings concerned two children. The mother applied on Form C2 for a Part 25 expert appointment to obtain an intermediary assessment, stating that PTSD and ADHD affected her ability to understand, focus on and digest information and to give her best evidence.

The application identified possible assessors and sought HMCTS funding. Although the parties were initially said to agree, the judge identified deficiencies in the evidential basis and questions concerning the proper procedure and scope of an intermediary’s role. The mother did not pursue the application at the hearing but sought a general adjournment so that it could be restored if evidence established the need for an intermediary.

The application was adjourned generally. Mr Justice Williams gave guidance on the procedural and evidential requirements for intermediary applications.

1. Under Family Procedure Rules 2010 Part 3A and Practice Direction 3AA, an intermediary is a participation measure. The primary functions identified in FPR 3A.1 concern communicating questions and answers and explaining them as necessary. Broader assistance, such as helping a party understand other evidence, read papers or give instructions, requires evidential justification.

2. The governing question is whether an intermediary is necessary to secure a fair hearing or fair participation. The test is strict. The court must consider the full range of available participation directions and the circumstances of the individual together with the facts, issues and demands of the proceedings.

3. An intermediary must not be appointed as a precaution, safety net or security blanket. The court must first consider whether fair participation can be achieved through other measures, including the legal team’s ordinary assistance, simple and focused language, adapted questioning, breaks, and other measures identified in Practice Direction 3AA. Only where those measures are insufficient will an intermediary be necessary.

4. The recommendation of an intermediary, psychologist or other expert is not determinative. The decision is for the judge, who must assess necessity on all the evidence. An intermediary assessment will ordinarily be a case-management direction akin to the appointment of an interpreter, rather than a Part 25 expert appointment.

5. The need for an intermediary is fact-sensitive. Whole-hearing assistance will be rare, assistance with understanding other evidence rarer, and assistance with written evidence and instructions rarer still. Applications must identify the matters required by Practice Direction 3AA paragraph 6.1 and must provide evidence of the condition, its functional impact, and why the proposed measure is necessary in the particular case.

6. On the material then available, the mother’s application contained only an unsupported assertion of diagnosis and did not explain why an intermediary was necessary in the proceedings. The issue was to remain under review if further psychiatric or other evidence established the need.

First-instance decision. The judgment does not state any prior appellate history.