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.