M (A Child: Intermediaries), Re

The appointment of an intermediary in family proceedings is governed by Family Procedure Rules 2010 Part 3A and Practice Direction 3AA. The test is whether assistance is necessary to achieve a fair hearing. The assessment is person-specific and task-specific. Rarity, exceptionality and compelling reasons are not additional thresholds. The court must consider the rule 3A.7 checklist, the evidence, alternative participation directions and the precise assistance sought. Intermediary support may be necessary for court hearings, evidence, instructions or legal conferences, but each setting requires separate consideration. Reasons for the decision must be recorded. A general assurance that the judge and advocates will adapt is insufficient where the evidence establishes that intermediary support is necessary.

The mother appealed against an order of the Family Court at Medway, made by HHJ Clive Thomas on 15 January 2025 in care proceedings concerning her injured infant. The judge accepted that she was vulnerable but refused intermediary assistance for the forthcoming fact-finding hearing, relying on other participation directions and guidance referring to the rarity of whole-hearing appointments.

The appeal concerned the proper interpretation and application of Part 3A of the Family Procedure Rules 2010. The central issues were whether intermediary assistance was necessary for the mother’s participation and evidence, whether assistance could extend to legal conferences, and whether the judge had adequately assessed the evidence, the proceedings and available alternatives.

The court, in the judgment of Lord Justice Peter Jackson agreed by Lord Justice Snowden and Lady Justice King, allowed the appeal unanimously.

1. Governing framework. Part 3A of the Family Procedure Rules 2010 and Practice Direction 3AA form a comprehensive framework for securing fairness for vulnerable people while controlling the use of public resources. The framework guides, but does not replace, the court’s own evaluative judgment. The court must identify vulnerability at an early stage, assess whether participation or evidence is likely to be diminished, and consider the relevant checklist and circumstances of the individual proceedings. The approach was consistent with Re N (A Child) [2019] EWCA Civ 1997, Re S (Vulnerable Parent: Intermediary) [2020] EWCA Civ 763 and Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8.
2. Necessity and scope. The test for an intermediary is necessity to achieve a fair hearing. It is person-specific and task-specific. The court rejected the addition of rarity, exceptionality, compelling reasons or similar thresholds. The rarity-based observations in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam) and Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) were obiter and were not a substitute for applying the rules to the evidence. The criminal decision in R v Thomas (Dean) [2020] EWCA Crim 117 was not an aid to interpreting Part 3A.
3. Evidence and case management. The court must consider cognitive evidence, any intermediary assessment, submissions from the parties and the available alternative directions. Expert recommendations are not determinative, but they require proper engagement. The application should identify the precise hearings, tasks and meetings for which assistance is sought. Intermediaries are not appointed merely to make proceedings easier, but advocates should not be required to exceed reasonable professional competence where an intermediary is necessary.
4. Error below. Although the judge recognised the mother’s vulnerability and referred to necessity, he was materially influenced by the rarity-based guidance. He failed sufficiently to assess her cognitive and communication difficulties in the context of the complex and emotionally charged fact-finding hearing, the absence of a solicitor at trial, the views of the other parties, the need to prepare written evidence and the adequacy of alternatives. He did not conduct an effective ground rules hearing, specify alternative arrangements or record reasons in the order. A general assurance that the court would ensure participation was inadequate, as illustrated by Re M (A Child) [2012] EWCA 1905.
5. Order. The refusal was set aside. An intermediary was appointed for further case management hearings, the fact-finding hearing including judgment, and legal conferences at court on those occasions. HMCTS was directed to bear the cost. Any application for assistance at significant conferences away from court or after fact-finding was left for the judge to determine separately.

• Court of Appeal (Civil Division) — On 10 April 2025, the appeal from the refusal of intermediary assistance was allowed and the order was substituted to grant assistance for specified hearings and conferences.
• Family Court at Medway — HHJ Clive Thomas refused the mother’s application for intermediary assistance on 15 January 2025.