Melissa Vaughan is a member of Oriel Chambers Family Team.

Here Melissa provides a brief outline on cognitive assessment and intermediaries in the family Court.

If you would like any further assistance in any of the topics arising from this article, please do not hesitate to contact our clerks at clerks@orielchambers.co.uk

Recently, there has been a real concern that there is an overuse of intermediaries in the Family Courts at great expense to the public purse which in turn is drawing valuable resources away from other cases within the family justice system.

In addition to this, the issue of whether an intermediary is to be used has been an all-too-common question. Often, the courts are sanctioning the use of an intermediary at every stage of the court process, rather than considering whether it is necessary and proportionate to use one at every stage or whether fair participation can be achieved by alternative means.

An assessment by an intermediary SHOULD NOT be directed unless there is a cognitive assessment supporting the use of an intermediary as necessary to enable the party to engage with proceedings fairly. A cognitive assessment is expert evidence is therefore governed by Part 25 FPR 2010. The assessment will only be granted by the Court should it be deemed ‘necessary’ to resolve proceedings justly, pursuant to FPR Part 25.4(3).

In any case, the application for whether there should be a cognitive assessment, or an intermediary assessment should be supported by evidence and reasons in support of the application.

To justify and assessment by an intermediary, any such cognitive assessment you must:

• Provide evidence that the use of an intermediary is necessary to enable the party to participate in the proceedings fairly
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• Provide reasons and evidence in support to justify why fair participation could not be achieved by alternative means, for example, by the court applying the principles set out in the Advocates Gateway.
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• When answering those questions, an assessment must consider the party’s participation specifically at each stage of the proceedings:
  
  1. Case management hearings
  2. Conferences/taking instructions
  3. Giving evidence at a contested hearing

Assessments by and appointment of an intermediary:

The FPR define an intermediary with Rule 3A

“intermediary” means a person whose function is to—

(a)communicate questions put to a witness or party;

(b)communicate to any person asking such questions the answers given by the witness or party in reply to them; and

(c)explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions;

As mentioned above, the question for the Court in considering whether to direct an assessment by and the subsequent appointment of an intermediary, is whether that direction/appointment is necessary to enable a party to participate in proceedings fairly.

In determining whether to appoint an intermediary the Judge MUST have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the party can participate fairly in the trial i.e.

• Familiarise the party with the court building and the process
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• Simplified language
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• Questions prepared in advance
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• Need for breaks
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• Consider how best to arrange the court room
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• Visual aids to help with communication
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• How can the advocates adapt to assist the witness?

You should familiarise yourself with the Advocates Gateway (https://www.theadvocatesgateway.org) and in particular, Toolkit 13, which relates to vulnerable witnesses in the Family Courts.

https://www.theadvocatesgateway.org/_files/ugd/1074f0_48a0c6b6fca942fc819255e4104ac9de.pdf

• The decision to appoint an intermediary is always one for the judge. The conclusion of either a cognitive assessment and/or intermediary assessment is NOT definitive on the issue.
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• The spectrum of vulnerability will self-evidently by very wide. Only towards the far end of the spectrum, will there be the cases where an intermediary is necessary for the giving of evidence. Only at the very far end of the spectrum will there be cases where an intermediary is required for the whole of a hearing and only in the rarest of cases, will an intermediary be necessary to enable the party to give instructions in advance of a hearing.
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There are three recent cases that deal with this issue:
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• West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam);

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- Within care proceedings an order was made appointing a deaf intermediary for the mother, who is described as ‘profoundly deaf’, during the duration of a Final Hearing.

- In fact, the listed Final Hearing was ineffective as the Intermediary did not attend, and the matter was therefore listed before Lieven J for consideration of whether there should be a wasted costs order. Ultimately no such order was sought or made, and it was accepted that the Intermediary had failed to attend due to personal circumstances which rendered the making of a wasted costs order inappropriate.

- Lieven J took the opportunity however to review the use history and use of Intermediaries in the criminal and family courts, noting that differences in practice had emerged as between the two jurisdictions, with there being only limited mention of Intermediaries at all in the family jurisdiction (FPR r3A.1), but there being helpful guidance in the criminal jurisdiction in the Criminal Practice Directions 2015 and in R v Thomas (Dean) [2020] EWCA Crim 117.

- Lieven J sets out some of the guidance from the Court of Appeal in R v Thomas (Dean) before extracting the following principles, which she states [at 46] are directly applicable to the Family Court:

a. It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a “just in case” basis. Thomas [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified and not make such an order simply because they are asked to do so.

b. The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case, Thomas [36];

c. Intermediaries should only be appointed if there are “compelling” reasons to do so, Thomas [37]. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549 at [29];

d. In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial, Thomas [37];

e. The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];

f. If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];

g. At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence and importantly ensuring that “evidence is adduced in very shortly phrased questions” and witnesses are asked to give their “answers in short sentences”. This was emphasised by the Court of Appeal in R v Rashid (Yahya) [2017] 1 WLR 2449.”

- By way of further general guidance, Lieven J goes on to state [at 46-47] that:

“… Counsel submitted that there was a need for intermediaries because relevant parties often did not understand the proceedings and the language that was being used. However, the first and normal approach to this difficulty is for the judge and the lawyers to ensure that simple language is used, and breaks taken to ensure that litigants understand what is happening. All advocates in cases involving vulnerable parties or witnesses should be familiar with the Advocates Gateway and the advice on how to help vulnerable parties understand and participate in the proceedings. I am reminded of the words of Hallett LJ in R v Lubemba [2014] EWCA Crim 2064 at [45] “Advocates must adapt to the witness, not the other way round”. A critical aspect of this is for cross-examination to be in short, focused questions without long and complicated preambles and the use of complex language. Equally, it is for the lawyers to explain the process to their clients outside court, in language that they are likely to understand. Finally, it is the role of the judge to consider whether the appointment of an intermediary is justified. It may often be the case that all the parties support the appointment, because it will make the hearing easier, but that is not the test the judge needs to apply.”

- In the circumstances of the case before her, it was decided the presence of a deaf Intermediary for the duration of the trial was appropriate.
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• West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam)
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- A decision from Lieven J including guidance on applications for cognitive assessments in care proceedings.

- "An application under Part 25 for a psychological/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings. The evidence must explain why the parent’s needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be nice to have".

- "It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway."

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• X & Y (Intermediary: Practice and Procedure) [2024] 906 (Fam) in relation to intermediary assessments.
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- A decision of Williams J on the topical issue of the appointment of intermediaries in family law proceedings.

- Intermediaries are not to be used as some sort of safety net or security blanket by lawyers or the courts but only where their use is necessary. They are a limited resource and a resource which comes with significant cost.

- Their use is governed by the procedural regime established in FPR 2010 Rule 3A and PD 3A.

- The Court is engaged in an evaluation of what participation directions are necessary to ensure that a fair hearing is achieved either in relation to a witness’ evidence or to a party’s participation in the proceedings. The Court will consider the factors within FPR 3A.7 (a-m).

- The Court will consider what other steps can be taken to ensure fair participation. It should not be the default position that a witness or party who is identified as vulnerable and needing measures to be taken to support their participation or giving of evidence requires an intermediary.

- Only if their fair participation cannot be achieved by other measures will an intermediary be necessary.

- A major component of the role of legal representatives is to ensure their client understands the proceedings and their role in them, putting their views to the court, ensuring their client is able to give them instructions and enabling them to attend court without distress. Only if the court is satisfied that the usual support a legal team and other measures available to the court will not enable the party to participate fairly will it be necessary to provide for an intermediary.

- The tailoring of language and the use of the tools identified in the Advocates Gateway will often be enough to enable fair participation.

If you require further information about this topic, please do not hesitate to contact chambers directly via clerks@orielchambers.co.uk

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