Key Facts
- •Care proceedings concerning two children, X and Y.
- •Mother (A) diagnosed with PTSD and ADHD, seeking an intermediary.
- •Application for intermediary assessment made under Part 25, seeking HMCTS funding.
- •All parties initially agreed on the intermediary assessment, but the judge identified several obstacles.
- •Application adjourned to allow for establishment of an evidential basis.
- •Judgment addresses issues emerging in Family Courts regarding the use of intermediaries.
Legal Principles
Intermediaries are only to be used when necessary to ensure fair participation, not as a safety net.
FPR 2010 r.3A and PD3AA
The definition of an intermediary in FPR 3A.1 has a narrow remit, focusing on communication of questions and answers.
FPR 3A.1
The test for necessity of a participation direction, including an intermediary, is stricter than 'useful' or 'desirable'; it requires an evaluation of what's needed for a fair hearing.
FPR 3A.2A(3), 3A.4(1), 3A.5(1), Re H-L (Expert Evidence: Test for Permission) [2013] 2 FLR 1434
A range of measures should be considered before appointing an intermediary (PD3AA para 4.1 and 2 and para 5.3-5.7), including those available to the legal team.
FPR PD3AA
Applications for Participation Directions must be made by Part 18 applications, identifying matters in PD3AA 6.1.
FPR 3A.10(3), PD3AA 6.1
Cases where an intermediary is necessary to assist with giving instructions before a hearing are very rare.
Judge's own observation
Evidence supporting the need for an intermediary may include expert reports, medical history, or statements from the legal team.
Judge's own observation
Principles from criminal cases (e.g., R v Thomas (Dean) [2020] EWCA Crim 117; R v Cox [2012] EWCA Crim 549; R v Rashid Yahya [2017] EWCA Crim 2) are largely applicable to family cases.
West Northamptonshire Council v KA and NH [2024] EWHC 79 (Fam)
Outcomes
Application for intermediary assessment adjourned.
Insufficient evidence presented to demonstrate necessity; application made under incorrect procedure; existing evidence didn't suggest significant difficulty.