M (A Child: Intermediaries), Re

The Court of Appeal set out the correct approach to applications for intermediary assistance under Part 3A of the Family Procedure Rules 2010 and Practice Direction 3AA: the test is necessity to achieve a fair hearing, applied in a person-specific and task-specific way. The court must require an evidential basis (commonly a cognitive report and, if ordered, an intermediary assessment), consider other participation directions, and record reasons for its decision in the order. The judge below erred by giving undue weight to statements about the supposed rarity of whole-trial intermediary orders, failing adequately to address the evidence of the mother’s cognitive and communication difficulties or to seek the views of other parties and the intermediary assessor, and by not specifying reasons in the order. The appeal was allowed and the mother was granted intermediary assistance for specified hearings and for in-court legal conferences, with costs of the intermediary to be borne by HMCTS.

Background and procedural posture

This is an appeal from a decision of the Family Court at Medway (HHJ Clive Thomas, order dated 15 January 2025) refusing the mother’s application for intermediary assistance in care proceedings concerning an unexplained skull fracture to her infant. There had been cognitive and intermediary assessments recommending intermediary support and the matter was listed for a fact-finding hearing. Permission to appeal was granted and the Court of Appeal heard the matter on 18 March 2025.

Nature of the application

• The mother sought an intermediary to assist her at the forthcoming fact-finding hearing, at further case management hearings ahead of fact-finding, and for legal conferences at court, on the basis that she had cognitive and communication difficulties (including autism spectrum disorder, auditory working memory problems, limited vocabulary and high anxiety) which would impair her participation and the quality of her evidence.

Issues framed by the court

• Whether the mother should be regarded as a vulnerable person under Part 3A FPR and PD3AA;
• if so, whether her participation in the proceedings or the quality of her evidence was likely to be diminished by reason of that vulnerability;
• whether the appointment of an intermediary was necessary to achieve a fair hearing, as distinct from other participation directions; and
• whether the judge’s decision gave adequate reasons in the order.

Court’s reasoning and decision

The Court of Appeal reiterated that Part 3A/PD3AA create a comprehensive code: the correct test for intermediary appointment is necessity to achieve fairness, applied with prominence to the individual and the task. The court must have regard to the matters listed in rule 3A.7, require an evidential basis (often a cognitive report and intermediary assessment), and consider other measures. The lower judge adopted and was influenced by high‑court statements stressing rarity of whole‑trial intermediary orders; the Court of Appeal held that frequency or ‘exceptionality’ are not legal tests and that he had thereby failed to engage adequately with the authorative evidence before him. The Court of Appeal found that the mother’s assessed difficulties, the pressured nature and gravity of the fact-finding hearing, the role of counsel without a solicitor present, and the absence of reasons in the order together made an intermediary necessary. The appeal was allowed and an order substituted appointing an intermediary for further case management hearings, the fact-finding hearing (including delivery of judgment) and in-court legal conferences, with HMCTS to bear the cost. The court left any application for further out-of-court intermediary assistance to the trial judge to determine later.

Appeal allowed. The Court of Appeal held that the Family Court must apply Part 3A FPR and Practice Direction 3AA by asking whether intermediary assistance is necessary to achieve a fair hearing in the individual case; the lower judge misapplied the law by importing a rarity/exceptionality threshold and by failing to engage with the evidence (cognitive report and intermediary assessment), the impact of the proceedings, and the views of other participants. The Court substituted an order appointing an intermediary for specified hearings and in-court conferences and directed HMCTS to bear the cost.

Appeal from the Family Court at Medway (HHJ Clive Thomas) in proceedings ME24C50093; order refusing an intermediary dated 15 January 2025; permission to appeal granted 6 February 2025; appeal allowed by the Court of Appeal, neutral citation [2025] EWCA Civ 440 (this judgment).