M (A Child: Intermediaries), Re

The Family Court must apply the Part 3A framework: an intermediary is only to be appointed where it is necessary to achieve a fair hearing, assessed in a person-specific and task-specific way using the factors in rule 3A.7 and PD3AA; rarity or general policy arguments (for example that whole-trial appointments are "exceptional") are not substitute tests and must not divert the court from the Part 3A necessity inquiry.

This is an appeal from a Family Court pre-trial direction refusing an intermediary for the mother in care proceedings arising from an unexplained skull fracture to her infant. The Family Court had ordered cognitive and intermediary assessments and heard competing submissions at a pre-trial review. The judge found the mother vulnerable but refused the intermediary application, expressing the view that the court could make other adjustments. The Court of Appeal allowed the appeal, holding that Part 3A FPR and Practice Direction 3AA require a necessity-based, evidence-led assessment and substituted an order appointing an intermediary for specified hearings.

Held (majority, Lady Justice King, Lord Justices Peter Jackson and Snowden)

1. Disposition: The appeal is allowed. The Family Court order dated 15 January 2025 refusing an intermediary is set aside and an intermediary is appointed for specified hearings; costs of attendance in court are to be met by HMCTS.
2. Primary legal framework: The court must decide intermediary applications by applying Part 3A of the Family Procedure Rules 2010 and Practice Direction 3AA, which together form a comprehensive and mandatory framework for identifying vulnerability and deciding what participation directions are necessary. The court's inquiry is person-specific and task-specific and is governed by the factors in rule 3A.7 (see Annex extracts in the judgment).
3. Test of necessity: The decisive test is whether an intermediary is necessary to achieve a fair hearing (for participation other than giving evidence) or necessary to secure the quality of evidence (for giving evidence). Frequency, rarity or labels such as "compelling reasons" are not alternative or overriding tests and must not displace the Part 3A necessity inquiry.
4. Procedure and evidence: Applications should normally be made formally (application notice) and supported by cogent evidence (commonly a cognitive assessment and, where ordered, an intermediary assessment). Orders should, where possible, specify the precise extent and purpose of intermediary assistance (which hearings, legal conferences, ground rules, etc.). The court must record brief reasons in its order for making or refusing participation directions.
5. Scope of intermediary assistance: The court's powers are sufficiently wide to authorise intermediary assistance for legal conferences and certain out-of-court meetings; but necessity must be assessed separately for courtroom attendance and for other meetings because the pressures and communicative demands differ by setting.
6. Case-application: On the facts, the judge erred by giving weight to obiter High Court dicta emphasising rarity and by failing to engage adequately with the uncontradicted cognitive and intermediary assessments and with the particular pressures of the imminent fact-finding hearing. The judge did not seek the views of other parties, did not consult the intermediary assessor in court and did not specify alternative, tailored participation directions. The errors of approach and absence of reasons made the refusal unsustainable.
7. Remedy and directions: The Court of Appeal substituted an order appointing an intermediary for: (a) further case management hearings before the fact-finding hearing; (b) the fact-finding hearing (including delivery of judgment); and (c) legal conferences between the appellant and her legal advisors at court on those occasions. HMCTS is to meet the cost of the intermediary's attendance in court. Any further applications (for assistance outside court or after fact-finding) are remitted to the trial judge.

• Court of Appeal (Civil Division): allowed the appeal; substituted an order appointing an intermediary for specified hearings and directed HMCTS to meet the cost of the intermediary's attendance in court.
• Family Court at Medway: pre-trial review decision refusing an intermediary (order dated 15 January 2025) – set aside by this court and remitted for the exercise of the judge's discretion as to any further applications for out-of-court intermediary assistance.