Dere Street’s Pupil Deck

This week’s blog is brought to you by Laura Callaghan – pupil to Catherine Fagan 
 
The intermediary function was created by the Youth Justice and Criminal Evidence Act 1999 for use in criminal cases. Their role has since branched out to include usage in the family courts. Under the Family Procedure Rules (FPR) 2010, the overriding objective (r.1.1(1)) mandates that the court must deal with cases justly, and ‘having regard to any welfare issues involved’. On that basis, a vulnerable witness or party may be entitled to an intermediary to ensure that things are communicated to and from that party in an understandable way in an effort to ensure effective participation in proceedings.
Vulnerable
There is no specific definition of vulnerable in this context in the family courts, but case law suggests that those with learning or cognitive functioning difficulties, mental health conditions affecting communicative abilities and psychical disabilities such as hearing loss, among others, may be eligible for the assistance of an intermediary. In Newcastle City Council v WM & Others [2015] EWFC 42, the mother had significant communicative difficulties, and Cobb J remarked that the intermediary report was:
 
‘clear and practical, providing guidance about how best to manage the case in a way which would optimise the mother’s participation’
 
Furthermore, a witness under the age of 18 may require an intermediary. This may also be relevant where a child who is the subject of proceedings has separated from their Children’s Guardian, particularly where they may give evidence. In that instance, that child may require an intermediary to participate effectively. However, a child will not always require an intermediary – the decision is taken on a case by case basis with reference to their specific needs.
Appointment
The Family Justice Council Guidelines (2011) say that where a child is to give evidence, the need for ‘ground rules’ and an ‘intermediary if applicable’ should be considered at the ‘earliest available opportunity’. This approach appears to also be taken in respect of any other party or witness who may require an intermediary – this should be assessed by advocates and the court at the earliest available opportunity.
FPR 3A states that the court must consider whether a ‘party’s participation in proceedings … is likely to be diminished by reason of vulnerability, and if so, whether it is necessary to make one or more participation directions’ – the factors to be considered under 3A.6 include whether a party requires the assistance of an intermediary to participate in proceedings, or whether a witness questioned in court requires the assistance of an intermediary.
If the court is satisfied that an intermediary may be necessary, it can by way of application or its own motion, order that an intermediary assessment is undertaken. Following receipt of this, a Judge may order that a professional intermediary is appointed.
Funding
There is no statutory requirement that the court should fund an intermediary assessment or an intermediary in family proceedings. However, the President of the Family Division stated in 2015 that the ‘cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service … [as an] intermediary is not a form of representation but a mechanism to enable the litigant to communicate effectively’
Practical Role
Intermediaries perform a wide ranging and flexible role within family proceedings. FPR 3A.1 states that an intermediary ‘means a person 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;’

 
Intermediaries may also recommend how regularly breaks should be taken for that particular party or witness and review proposed questions from advocates to ensure they are readily understandable and sufficiently targeted, amongst other things.
Effect of Hybrid Hearings
In Re S (Vulnerable Parent: Intermediary [2020] EWCA Civ 763 the mothers cognitive functioning meant that consideration was given as to whether an intermediary was required. The Judge at first instance determined, in light of a full psychological assessment, that other practical case management directions such as questions limited to 20 words, was sufficient. However, the Court of Appeal allowed the mothers appeal partly on the basis that consideration had not been given to the effect of a hybrid hearing on the mother’s ability to participate effectively. Jackson LJ stated that:
‘even assuming that the technology works in an optimal way, the process removes many of the visual cues that are so valuable to individuals with a cognitive impairment’
 Accordingly, extra consideration and vigilance ought to be used when considering whether an intermediary is necessary where the proceedings are wholly or partly remote, as it has been highlighted as an important factor when determining a party’s ability to participate effectively.