In the recent decision of Re M (A Child: Intermediaries) [2025] EWCA 440, the Court of Appeal has considered the use of intermediaries within family proceedings, and how courts should approach this issue.

Background

The overriding objective within the family courts, as set out in the Family Procedure Rules, is to enable the courts to deal with cases justly, having regard to any welfare issues involved. To deal with a case justly, a court should, as far as it is practicable: ensure that it is dealt with expeditiously and fairly; deal with it in a proportionate manner; ensure that the parties are on an equal footing; save expense; and allot an appropriate share of the court’s resources.

As part of ensuring the overriding objective is achieved, the court must, as far as it is able to do so, adapt its procedures to achieve fairness for vulnerable individuals.

Part 3A and Practice Direction 3AA set out how the court should approach vulnerable individuals and witnesses, balancing the rights of vulnerable individuals to be able to participate in proceedings, alongside the demands of the family justice system.

In a case where it is relevant, the court will need to ask itself:

  1. Is a party or a witness a vulnerable person, having regard to the matters set out in FPR rule 3A.7 and the practice direction? (FPR r3A.3)
  2. If so, is the party’s participation in the proceedings (other than by way of giving evidence) likely to be diminished by reason of vulnerability and, if so, is it necessary in order to achieve a fair hearing to make one or more participation directions? (FPR r3A.4 and 3A.7 and PD3AA para 1.2)
  3. Is it likely that the quality of evidence given by a party or witness will be diminished by reason of vulnerability and, if so, is it necessary in order to achieve a fair hearing to make one or more participation directions, as determined at a ground rules hearing? (FPR r3A.5 and 3A.7 and PD3AA paras 1.2 and 5.2)

Intermediaries are not expert witnesses, but communication specialists, who communicate and explain questions asked of vulnerable people or the answers given by them. Where the court has found that an individual is vulnerable and that their participation would be diminished due to this vulnerability, the court will need to consider whether it is necessary to approve the appointment of an intermediary in order to achieve a fair hearing or trial.

In the last 12 months, there have been a number of cases in the high court providing guidance as to the appointment of intermediaries within proceedings in the family court.

The West Northamptonshire Council case

In West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam), Lieven J provided some guidance on the use of intermediaries in the family court, citing extensively a criminal case, R v Thomas (Dean) [2020] EWCA Crim 117, observing that, in her view, it was applicable to the same issues in the family justice system. The judge extracted the following principles from the Thomas case:

  1. it will be ‘exceptionally rare’ for an order of an intermediary to be appointed for a whole trial, and should not be appointed on a ‘just in case’ basis;
  2. the judge must give careful consideration not merely to the circumstances of the individual but also the facts and issues of the case;
  3. intermediaries should only be appointed if there are ‘compelling’ reasons to do so, and should not be appointed simply because the process ‘would be improved’;
  4. the judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure effective participation;
  5. the recommendation by an expert for an intermediary is not determinative, and the decision is ultimately for the judge;
  6. if every effort has been made to identify an intermediary but none can be found, it would be unusual to adjourn a case for lack of an intermediary;
  7. such steps that can be taken to ensure effective participation in the absence of an intermediary could include having breaks in the evidence, ensure evidence is adduced in short phrased questions, and witnesses giving their answers in short sentences.

Re X and Y

Williams J in Re X and Y (intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) adjourned an application for an intermediary application, and endorsed the guidance of Lieven J as set out above, with one minor reservation. He too observed that, ‘in rare cases an intermediary may be necessary to assist the party to understand the evidence of others. In very rare cases an intermediary may be necessary to enable the party to consider the written evidence and to give instructions’.

 The Oxfordshire County Council case

In a further decision by Williams J, in Oxfordshire County Council v A Mother and others (Intermediary Appointment Refused) [2024] EWFC 161, the judge refused the application for an intermediary to be appointed to assist the mother for the duration of the proceedings, including any conferences. The judge did not consider that an intermediary was necessary to assist the mother to participate in the proceedings, and while it may be that her participation may have been improved, given the limited range of issues in which the mother’s capacity was diminished, the judge was ultimately satisfied that her solicitor and counsel would be able to ensure effective participation through the use of the intermediary’s advice, such as adapting their language, taking sufficient time to go through evidence, or to explain more complex aspects of the expert evidence. The judge considered that these were all part of the skill-set of both solicitors and barristers.

The Court of Appeal in the decision of M (A Child: Intermediaries), endorsed this approach, with Williams J having reached this outcome through applying the test of necessity in its unvarnished form.

The Appeal: M (A Child: Intermediaries) [2025] EWCA Civ 440

In the matter of Re M, the judge was asked at the pre-trial review to allow the mother to be assisted by an intermediary for a fact-finding hearing and in preparation of her written evidence. When giving his decision, the judge recalled the purpose of an intermediary as per Part 3A FPR and PD3AA, considering that the mother was a vulnerable individual, and addressed the question as to whether it was necessary for her to have an intermediary to enable fair participation in the fact-finding hearing, and for her to give her best evidence. The judge also relied on a number of propositions set out in the West Northamptonshire case as well as Re X and Y, including that an intermediary for the whole trial should be exceptionally rate, and it was only in very rare cases that an intermediary would be needed to enable a party to consider written evidence to give instructions. The judge decided that an intermediary was not necessary, and that the court could ensure the mother’s participation in the hearing and provide her best evidence.

The Court of Appeal considered that this was the wrong decision. The Court of Appeal considered that while the judge had correctly identified the provisions of Part 3A and that the test was one of necessity, the judge incorrectly took into account the obiter statements of the high court, as to how rare the appointment of an intermediary should be.

This approach saw the judge pay insufficient attention to the mother’s difficulties. In this particular case: the psychological report and cognitive assessment were undisputed; counsel for the mother submitted in the appeal that without the support of an intermediary her task of preparing for and conducting the trial had been made ‘near impossible’; the judge had not taken submissions from the other parties, there had been two children’s guardians who both expressed concerns about the mother’s ability to communicate and her ability to manage in court with support, as well as the views of the maternal grandmother who was also party to proceedings; the judge could have checked any provisional view with the intermediary assessor who was in court; the judge did not take into account the nature and gravity of the proceedings for the mother and their potential impact on her presentation, and how this could be fair for her, or her counsel to be expected to manage without a key part of the existing support structure; the intermediary assessment contained limited evaluation of how the preparatory stages would look which the judge should still have considered; the pre-trial review should have been used as a ground rules hearing and when the judge refused the application for an intermediary, he did not then put in place any alternative arrangements; and finally, reasons for refusing the application were not given.

Outcome

The Court of Appeal carefully considered the guidance set out in the West Northamptonshire case, ultimately seeing the decision in Thomas as being unhelpful to aiding the interpretation of Part 3A of the Family Procedure Rules. The guidance in Thomas drew on the 2015 Criminal Practice Direction, which provided that the appointment of an intermediary for a defendant’s evidence would be rare, and for an entire trial, extremely rate. These references did not appear in the more recent Criminal Procedure Rules 2020, nor in the current 2023 Criminal Practice Direction.

The Court of Appeal considered that the use of ‘exceptionally rare’, ‘very rare’ and ‘rare’ by both Lieven J and Williams J as unhelpful, given the existing legal test of necessity as set out in the Family Procedure Rules, as ultimately, ‘frequency is not a test, and nor is exceptionality’.

While there may be reservations that intermediaries are appointed too freely within family proceedings, the Court of Appeal affirmed that the proper approach is that of the test of necessity as found in the family procedure rules, rather than one of frequency or exceptionality.

The Court of Appeal sought to redirect the family courts back to the test as set out in Part 3A and PD3AA, namely the test of necessity when it comes to the appointment of intermediaries.

In terms of whether to decide to approve the appointment of an intermediary, the following guidance has been given:

  1. The court will exercise its judgement within the framework of Part 3A of the Family Procedure Rules 2010 (‘the FPR’) and Practice Direction 3AA. The court needs to balance ensuring procedural fairness alongside the proper use of public resources.
  2. The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing. Decisions are person-specific and task-specific. The test is that which is set out in the FPR.
  3. There should be efficient case management. There must be early identification of vulnerability where it exists. Intermediaries are not experts, but applications for intermediary support should be approached with similar procedural discipline. The court should normally require an application notice and/or a draft order that specifies the exact extent of the requested assistance.
  4. The court’s powers are wide enough to permit it to authorise intermediary assistance for legal meetings outside the court building. However, support that is necessary in the courtroom may be unnecessary in a less pressured setting. The court should give separate consideration to any application of that kind.
  5. The Family Court is accustomed to using checklists when making procedural and substantive decisions. The mandatory checklist in FPR rule 3A.7 is an essential reference point to ensure that the factors relevant both to the individual and to the proceedings are taken into account. The weight to be given to them is a matter for the court, making a broad and practical assessment.
  6. An application for an intermediary must have an evidential basis. This will commonly take the form of a cognitive report and, if authorised, an intermediary assessment. The court can also take account of submissions on behalf of the vulnerable person, and from the other parties. The decision to appoint an intermediary to achieve a fair hearing is one for the court.
  7. When considering whether an intermediary is necessary, the court will consider other available participation directions. The court is entitled to expect specialist family lawyers to have a good level of understanding of the needs of vulnerable individuals in proceedings and an ability to adapt their communication style. Intermediaries should clearly not be appointed on a ‘just in case’ basis, or because it might make life easier for the court, but equally advocates should not be required to stray beyond their reasonable professional competence to make up for the absence of an intermediary where one is necessary.
  8. The rules provide that the reasons for a decision to approve or refuse participation directions for a vulnerable person must be recorded in the order. That can be done very briefly, and it is a further useful discipline.
  9. The approach described should ensure that intermediaries are reliably appointed whenever they are necessary, but not otherwise.