By Dominique Gillan
While they are now relatively commonplace in family cases, the position in respect of the appointment, qualification and duties of intermediaries in the family justice system is not clearly set out beyond what is set out in FPR r3A.1. The Criminal Practice Directions 2015 does, however, give detailed consideration as to the appointment of intermediaries.
In Re v Thomas (Dean) [2020] EWCA Crim 117, the Court of Appeal gave detailed consideration to the appointment of intermediaries and how they should be used. The following principles can be extracted:
- It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial. Intermediaries should not be appointed on a “just in case” basis. The judge appointing an intermediary should consider whether a whole trial order is justified, and not make an order simply because they are asked to do so.
- The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case.
- Intermediaries should only be appointed if there are “compelling” reasons to do so. An intermediary should not be appointed simply because the process “would be improved”.
- In determining the application, the judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the party in question can effectively participate in the trial.
- The recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge.
- If every effort has been made to identify an intermediary but none has been found, it would be unusual (and possibly very unusual) for a case to be adjourned on just that basis.
In West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam), Lieven J held that all these points were directly applicable to the family court. The court reiterated the view of the Court of Appeal that the first and normal approach is for the advocates to ensure that simple language is used, and that lawyers to better support their clients outside the court room arena.
Dominique Gillan
5th March 2024
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