Necessity is the mother of intermediaries

Judgment was handed down this morning in Re M (A Child: Intermediaries) [2025] EWCA Civ 440. I had a small non-speaking part (for the FLBA).

The judgment is a delightfully streamlined read and brings some welcome clarity to the approach on the appointment of intermediaries.

As my – frankly fabulous – post title suggests, necessity is the test, baby. Nothing else will do: Not compelling. Not rare. Not exceptional. Just plain old necessary.

Lord Justice Peter Jackson had this to say about the various high court authorities from which these high bar tests have emerged (before going on to politely demolish them):

In the three appeals about intermediaries that it has heard since Part 3A came into effect, this court has taken its provisions at face value.  Considering that the regulatory framework is recent, it is unpromising ground for a wider exercise in judicial interpretation.

So, the various High Court authorities suggesting necessity plus in various flavours can be put to one side, and the President’s very recent guidance must also bow to this binding appellate authority (but only the few paragraphs which run contrary to the judgment).

There is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality.  Frequency is not a test, and nor is exceptionality.  Similarly, the introduction of tests of “compelling reasons”, or of adjournments for lack of an intermediary being “unusual” or “very unusual”, beckon the court to short-circuit its consideration of the evidence in the individual case.  … These projections, including references to “very rare” or “rare” cases, are not a substitute for a straightforward application of the rules.

Be warned though, the CoA did say that the impression apparently held by senior judges that intermediaries were being sought too often is not something to be scoffed away, and should be treated with respect. So whilst necessary doesn’t mean exceptional it also doesn’t mean helpful.

Any perception on the part of the senior family judges that intermediaries are being appointed too freely must be treated seriously.  But as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.

We should follow the FPR. Who’d-a-thunk it?

Advocates are expected to have sufficient skill to differentiate their questioning style and client care, but there is a limit – the judgment acknowledges that we only have one pair of eyes, and one pair of hands, have quite a lot else on our plate and are NOT intermediaries:

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.  It will consider what can reasonably be expected of the advocates, and in particular of the vulnerable party’s advocate in the individual case, bearing in mind that professional continuity may not be guaranteed.  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.

The judgment confirms that intermediaries may be appointed to assist in conferences away from court, for instance to prepare a witness statement – but just because a party needs an intermediary in the pressured environment of court does not necessarily mean they will need an intermediary at conferences elsewhere. The two should be considered separately.

The judgment also confirms that the contributions of the parties’ legal representatives on their vulnerable person’s needs are a legitimate part of the mix:

The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate.  Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act.  The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement.  As the process is a collaborative one – PD3AA paragraphs 1.4 and 3.1– the court may also benefit from submissions made by other parties, who may also have their own interest in the decision.  The local authority and Children’s Guardian will wish to ensure that the proceedings rest on firm foundations and, depending on the case, individual parties may have their own perspectives.

Two further points:

  • The intermediary conducting the assessment should be sent any cognitive assessment. This doesn’t seem to happen routinely but the Court of Appeal have said that the intermediary should have that information (for obvious reasons).
  • One of the errors made by the judge in the case appealed was that he did not properly consider what alternatives could and would be put in place to obviate the need for an intermediary. Had he done so the necessity for an intermediary would have been apparent (hello, Holistic evaluation has entered the chat). The checklist of factors in r3A.7 are an invaluable aide to a sound decision.

 

Bristol Cable Podcast

The Bristol Cable Podcast interviewed some local girl about transparency recently. No idea who she is, but have a listen if you fancy.

Listen: Bristol Unpacked with barrister Lucy Reed, on opening the secretive family courts to scrutiny

Also recommended is BBC Radio 4 short 10 part series ‘You do not have to say anything’ featuring criminal defence barrister and sausage dog owner Joanna Hardy Susskind, and some other stars of the criminal bar that you will want to hear from (I won’t spoil it for you). Really good explanation of how it works (and doesn’t). Listen here.

 

Lots more has been happening this week –

New Guidance on judges writing letters to children (a big thumbs up on that), a reminder that we shouldn’t be ‘citing’ cases that aren’t citable (generally decisions of Circuit Judges and below aren’t citable, just interesting!), and covert recording guidance… oh no, wait. Not that last one….

 

I may have been gone some time…

Posts are getting ever more infrequent around here. Doubtless in part because of my continuing inability to say ‘no’.

Having been on the verge of being virtually committee-less at the end of last year, I now find myself back on two committees (FLBA, Bar Council). The Transparency Project work continues, and I seem to be forever scrambling to keep on top of that. I am desperate to find some time to do more legal blogging (my last outing in October has been stuck in the mud for reasons I can’t tell you about at the moment, so I’ve nothing to show for my endeavours on that front), and I’ve been flat out with work since December. On top of all that there has been lots happening at home so there is much to juggle.

All excuses of course. I used to manage multiple posts a week whilst wrangling two toddlers and writing a book. I smile weakly whenever someone says to me ‘Oh, I don’t know how you manage it all’, knowing of course that approximately once a week a plate goes careering off its stick and spins into a wall, whilst the rest are circling slowly and about to drop.

Anyway, I’m between trials at the moment so have had a little time to regroup, catch up on sleep and rebalance slightly. I’ve spent most of half term with the kids, and yesterday was gloriously sunny and mild. The prom was heaving with dogs and humans, seagulls and discarded chip boxes. My prediction that, since it was still February, this was an obvious false spring, was spot on. But it was a welcome dose of vitamin D all the same and cheered me up no end. Today I am very much enjoying a Sunday in pyjamas and thick cosy socks, as the rain lashes on the windows.

So, what’s new in the world of family law?

Well. Intermediaries are out and the mainstreaming of neurodiversity is in. See guidance on neurodiversity here and intermediaries here, the latter of which effectively encapsulates the guidance in judgments of Lieven J and Williams J here and here and here. In my own recent experience are a number of trials involving lay advocates and intermediaries, and one trial in particular in which the intermediary report was perhaps less clear in its recommendations than the cases and guidance suggest is to be expected, but where in fact the intermediary turned out to be absolutely critical to our trial being fair and effective. Whilst recognising the need to keep the appointment of intermediaries and associated cost under a close eye, I do hope the pendulum will not swing too far on this front.

Anonymity remains a hot topic – when is it justified and when is it not?

Anonymity for judges is definitely out (but better security for them is definitely in).

Anonymity for dangerous men who pose a wider risk to the public seems to be out – for instance following on from the ‘Fragile X’ case, and the Kristoffer White case, the naming of another sperm donor who said he had fathered 180 children was reported recently too.

Anonymity for unregulated professionals (maternity nurses) who injure babies in their care – is out – at least in the quite fact specific decision of HHJ Rowe in this case about twins found to have been injured whilst in the care of their maternity nurse. Oddly though, the judge in the twins case refers to the President’s first instance decision in Abbasi / Haastrup, which was overturned on appeal to the Court of Appeal. She should have been referred to the appellate decision, which takes a very different view – and to the fact that the case is still pending in the Supreme court, meaning that anonymity for treating medics is still a bit up in the air. It’s been almost a year since the hearing of that case. Fortunately it doesn’t seem to have materially affected the outcome in the case of the twins as the judge decided to name the professional anyway, again in part because she was unregulated and therefore there was no obvious regulatory mechanism through which to ensure she was prevented from continuing to advertise herself as a maternity nurse or from providing care for children and that other families were protected. Read about this case here (links to both judgments).

The theme here is the broader risk to the public.

Sliding over from the unregulated maternity nurse to the vexed topic of unregulated experts – a smidgen of an update is now available from the most recent minutes of the Rule Committee:

…a meeting with the Domestic Abuse Working Group took place on 10 December 2024 to review draft amendments and the consultation paper. Feedback from the Working Group is being incorporated to finalise the rule in a way that ensures consensus. Once finalised, updates will be presented to the Committee. The outcome of the meeting is guiding the next steps, with a substantive update and a request for approval to launch the consultation planned for the Committee’s February 2025 meeting.

That February meeting will now taken place, but we won’t expect to see the minutes of that meeting for a little while. So far, no sign of any consultation. I dare say that some will be unhappy at the need for a consultation before implementation.

Meanwhile, a podcast based on undercover reporting recently exposed two experts instructed in the Family Court as …how best to summarise? …less independent and unbiased than the rules require and the court expects. Other descriptions are available, but I suggest you read / listen and form your own view. One was a regulated professional, the other was the same unregulated professional in Re C.

And – of course – we are still waiting for the covert recording guidance from the FJC. It has been almost a decade since it was first mooted, so if it arrives before I retire I will be surprised.

There is of course a whole lot more going on in family law than this smattering of information, and these are simply an assortment of shiny things that caught my eye.

That’s it from me this gloomy Sunday. I’m off to raid the fridge for Sunday snacks.

Roll on springtime…