Clarity on Intermediaries in Family Law Proceedings

On 10 April 2025, the Court of Appeal handed down Judgment in Re M (A Child) [2025] EWCA Civ 440, providing long awaited guidance for deciding whether and when to grant intermediary assistance to vulnerable parties in family proceedings. An intermediary is someone whose function is to:

1. Communicate questions put to a witness or party;
2. Communicate to any person asking such questions the answers given by the witness or party in reply to them; and
3. 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;

The Court’s discretion in granting intermediary assistance is governed by FPR 3A and PD3AA. Practitioners will also be aware of the authority of West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam). In that case, Lieven J observed that the considerations in allowing intermediaries in criminal proceedings applied to family cases and set out guidance in how judges should exercise their discretion in the family courts.

Re M (A Child)

The case concerned a ten-month-old baby who suffered an unexplained skull fracture. Care proceedings were initiated by the Local Authority, and the matter was listed for an eight-day fact finding hearing to determine the cause of the injury.

The Mother had ADHD, Oppositional Defiant Disorder and Asperger’s Syndrome, as well as anxiety and depression and had prescribed antidepressants. She presented with cognitive difficulties, and the independent social worker recommended significant support was needed for her to participate in proceedings. A cognitive assessment concluded that the mother would find giving evidence very difficult, suggesting an intermediary as essential to the case. An intermediary assessment recommended intermediary assistance throughout the proceedings, and she had intermediary assistance at two case management hearings and a pre-trial review.

An application was made at the pre-trial review for the mother to have intermediary assistance at the fact-finding hearing. Despite noting the vulnerability of the mother, HHJ Thomas refused the application relying on the guidance from West Northamptonshire; it was not necessary to ensure fair participation, nor to give her best evidence as the concerns raised (set out at paragraph 68) were within the Court’s capability to address.

The Appeal

On appeal, which was supported by the Local Authority and the Child’s Guardian, the Court of Appeal overturned HHJ Thomas’ decision, and provided refreshed guidelines on how the Court should approach striking the balance between fairness to vulnerable parties and the Court’s publicly funded resources. Peter Jackson LJ at paragraph 7 said:

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. These provisions are not complex, and they require very little elaboration. Their relevant parts appear in the Annex below. By following them, the court will steer a path between the evils of procedural unfairness to a vulnerable person on the one hand, and waste of public resources on the other.

• 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, and the introduction of other tests upsets the balance struck by the FPR and may draw attention away from the circumstances of the individual case.

• Efficient case management will assist sound decision-making in this area. 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. Different considerations may apply to different elements of the proceedings, and the court should normally require an application notice and/or a draft order that specifies the exact extent of the requested assistance.

• Correctly understood, 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. Accordingly, the court should give separate consideration to any application of that kind.

• 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.

• 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. Other evidence may come from the social worker or the Children’s Guardian. The court can also take account of submissions on behalf of the vulnerable person, and from the other parties, as they may have their own perspectives on the overall fairness of the proceedings. This reflects the collaborative nature of the task of identifying and making adjustments for vulnerability. Whatever the evidence and submissions, it is for the court, and not others, to decide what is necessary to achieve a fair hearing in the individual case.

• When considering whether an intermediary is necessary, the court will consider other available participation directions. In some cases they will be effective to secure fairness, so that an intermediary is unnecessary, or only necessary for a particular occasion, while in other cases they will not. 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 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.

• The approach described should ensure that intermediaries are reliably appointed whenever they are necessary, but not otherwise.

It is hoped that this framework will deliver clarity and consistency in family proceedings when making adjustments for vulnerable parties.

About the author

Charlie Stonehill is a First Six Pupil currently under the supervision of Adam Dawson.

Charlie attended Cardiff University where he studied BA History and the GDL, before completing the Bar Practice Course at the University of Law.