Ensuring Procedural Fairness: The Necessity Test for Intermediaries in Family Proceedings

Introduction

This commentary examines the landmark decision in M (A Child: Intermediaries) [2025] EWCA Civ 440 delivered by the England and Wales Court of Appeal on 10 April 2025. The case concerns a mother’s application for intermediary assistance in urgent care proceedings following her infant’s unexplained skull fracture. The court’s refusal of intermediary support at a pre-trial review prompted an appeal, supported by the local authority, the Children’s Guardian and intervening legal bodies. In allowing the appeal, the Court of Appeal clarified the test and procedure for appointing intermediaries under Part 3A of the Family Procedure Rules 2010 (FPR) and Practice Direction 3AA, emphasising necessity as the sole criterion.

Summary of the Judgment

The Court of Appeal:

Outlined the statutory framework: Part 3A FPR and PD3AA require early identification of vulnerability and procedural adjustments to secure fairness.
Held that the sole test for intermediary appointment is necessity to achieve a fair hearing, applied in a person-specific and task-specific way.
Rejected overlaying additional tests (e.g. rarity or exceptionality) derived from criminal jurisprudence.
Outlined procedural discipline: applications must specify the precise assistance sought, supported by evidence (cognitive and intermediary assessments) and draft orders.
Allowed the mother’s appeal, substituted an order appointing an intermediary for all remaining case management hearings, the fact-finding hearing, and legal conferences at court, with costs borne by HMCTS.

Analysis

Precedents Cited

The Court of Appeal surveyed key authorities on intermediaries in family proceedings:

Re M (A Child) [2012] EWCA Civ 1905: Ford-Driscoll LJ insisted that case-management pressures cannot justify denying necessary support to a vulnerable litigant. Overturned a “high risk judicial management” decision refusing an intermediary.
Re N (A Child) [2019] EWCA Civ 1997: King LJ endorsed Part 3A as a structured code for fair trials of vulnerable persons; wholesale failure to apply it likely renders hearings unfair.
Re S (Vulnerable Parent: Intermediary) [2020] EWCA 763: Emphasised additional demands of hybrid hearings and the case-specific nature of intermediary orders.
Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA 8: Baker LJ held that non-compliance with Part 3A may amount to procedural irregularity warranting appeal if unfairness ensues.
West Northamptonshire Council v KA [2024] EWHC 79 (Fam): A High Court decision that imported criminal-law concepts of rarity and exceptionality into intermediary appointments, which the Court of Appeal rejected as inconsistent with Part 3A.
Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906: Williams J emphasised necessity and cost considerations but qualified that rarity should not displace the statutory test.
Oxfordshire County Council v A Mother [2024] EWFC 161: A High Court refusal of an intermediary where advocacy adaptations were deemed sufficient; applied an unvarnished necessity test.

Legal Reasoning

The Court of Appeal’s reasoning rests on these pillars:

Statutory Framework: Part 3A FPR and PD3AA constitute a comprehensive code requiring identification of vulnerable parties, assessment of diminished participation or evidence quality, and necessity-based participation directions.
Necessity Test: The only criterion for intermediary appointment is whether it is necessary for a fair hearing. This test excludes additional qualitative filters (such as “exceptionality” or “rarity”) and focuses on the individual’s needs and the demands of specific tasks (case management, evidence-giving, legal conferences).
Procedural Discipline: Applications should be evidenced (cognitive report, intermediary assessment), task-specific (which hearings, conferences, or evidence-giving), and supported by draft orders. This ensures efficient case management and avoids “all or nothing” orders.
Broad Judicial Powers: The court’s powers extend beyond court-room assistance to legal meetings inside or outside court, but separate necessity assessments are required for each setting.
Reason-Recording: By rule 3A.9, every decision (to grant or refuse participation directions) must be briefly justified in the court order, reinforcing decision-making discipline.
Human Rights and Equality Duties: The court, as a public authority under the Human Rights Act 1998 and Equality Act 2010, must provide reasonable adjustments to secure Article 6 fairness and equal participation.
Rejection of Criminal Overlay: Intermediaries in criminal trials are guided by separate rules; their emphasis on exceptional appointment does not apply to Part 3A family proceedings, which were designed by a specialist working group to meet family justice needs.

Impact on Future Cases

This judgment will have significant effects:

Courts must apply the necessity test strictly, without importing external notions of rarity or compulsion.
Family practitioners will need to prepare precise, evidence-backed applications with clear draft orders delineating the scope of intermediary assistance.
Judges will be reminded to record succinct reasons in every order that addresses intermediary requests, enhancing transparency and facilitating appellate review.
The decision empowers vulnerable litigants—particularly those with neurodivergence, cognitive impairments or mental health issues—to secure timely communication support in family proceedings.
Policy and practice guidance issued by the President of the Family Division will need alignment with the necessity-only approach, tempering any emphasis on exceptionalism.

Complex Concepts Simplified

Part 3A FPR and Practice Direction 3AA: A statutory “roadmap” ensuring vulnerable parties and witnesses can participate without disadvantage. It defines vulnerability criteria, participation directions, and intermediary roles.

Intermediary: A communication specialist who explains questions to a vulnerable person and conveys answers back to questioners to secure accurate, coherent evidence and participation.

Participation Directions: Measures (e.g., live link, devices, intermediaries) ordered by the court to ensure a party can participate in proceedings or give evidence effectively.

Cognitive and Intermediary Assessments: Expert reports diagnosing cognitive strengths and vulnerabilities, and recommending whether intermediary assistance is necessary for fairness.

Ground Rules Hearing: A preparatory meeting where the court and advocates agree on communication protocols for a vulnerable witness or party before the main hearing.

Conclusion

The Court of Appeal in M (A Child: Intermediaries) [2025] EWCA Civ 440 has reaffirmed that intermediary appointments in family proceedings must be governed exclusively by the necessity test embedded in Part 3A FPR and PD3AA. By rejecting extraneous concepts of rarity or exceptionality and emphasizing early identification, evidential support, task-specificity and concise reasoning, the judgment secures procedural fairness for vulnerable participants while safeguarding judicial resources. This decision will guide judges and practitioners in balancing efficiency with the fundamental right to a fair hearing, marking a pivotal development in family justice procedure.