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M (A Child: Intermediaries)
Factual and Procedural Background
This appeal arises from the refusal of a mother's application for intermediary assistance in care proceedings concerning her infant child, who suffered a skull fracture at ten months old while living in a household with both parents, the maternal grandmother, and a teenage maternal uncle. Following the child's discharge from hospital, he was placed with other family members and care proceedings commenced due to the unexplained nature of the injury. An eight-day fact-finding hearing was initially scheduled for February 2025 but was subsequently adjourned to September 2025 for reasons unrelated to the appeal.
The mother, diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, Asperger's syndrome, anxiety, and depression, was assessed as vulnerable with cognitive difficulties impacting her ability to participate in proceedings. Following an intermediary assessment recommending intermediary assistance throughout the proceedings, the judge refused the mother's application for an intermediary for the fact-finding hearing. The appeal challenges this refusal.
Legal Issues Presented
- Whether the trial judge correctly applied the legal test under Part 3A of the Family Procedure Rules 2010 and Practice Direction 3AA regarding the necessity of appointing an intermediary to ensure a fair hearing for a vulnerable party in family care proceedings.
- Whether the judge properly considered the evidence of the mother's vulnerability and the context and complexity of the case when deciding to refuse intermediary assistance.
- Whether the judge erred by relying on obiter statements emphasizing the rarity of intermediary appointments rather than focusing solely on the necessity test.
- Whether the judge adequately considered alternative participation directions and the views of other parties before refusing the application.
Arguments of the Parties
Appellant's Arguments
- The judge failed to correctly apply the legal principles under Part 3A FPR and Practice Direction 3AA, focusing improperly on the rarity of intermediary appointments rather than necessity.
- The judge did not properly evaluate the evidence of the mother's cognitive and communication difficulties or the complex and emotionally charged nature of the proceedings.
- The refusal ignored the support the mother had received from an intermediary at previous hearings and failed to consider the impact on her ability to participate meaningfully and without undue distress.
- The judge did not seek or consider the views of other parties who supported the application, including the local authority, Children's Guardian, and grandmother.
- The judge did not consider alternative arrangements or partial intermediary assistance and failed to provide reasons in the order for the refusal, undermining procedural discipline.
Respondent Parties' Position
- The appeal was supported by the respondent parties, indicating agreement that the refusal of intermediary assistance was incorrect.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Re M (A Child) [2012] EWCA 1905 | Emphasizes the duty to ensure fair trial and necessary support for vulnerable parties despite case management pressures. | Used to illustrate the risk of procedural unfairness when intermediary assistance is denied and the importance of proper consideration of vulnerability. |
| Re N (A Child) [2019] EWCA Civ 1997 | Part 3A FPR and Practice Direction 3AA provide a structured approach to ensuring fair trials for vulnerable witnesses. | Affirmed that failure to apply Part 3A procedure likely renders a trial unfair; supports the necessity test for intermediary appointments. |
| Re S (Vulnerable Parent: Intermediary) [2020] EWCA Civ 763 | Consideration of intermediary necessity in hybrid hearings and the importance of adapting to vulnerable parties' needs. | Confirmed that intermediary decisions are case-specific and must consider hearing format and individual vulnerability. |
| Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8 | Clarifies that failure to comply with Part 3A provisions may lead to appeal if a serious procedural irregularity results in injustice. | Supported the principle that the court must make reasoned decisions on vulnerability and participation directions. |
| West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam) | Provided guidance on the use of intermediaries in family courts, drawing from criminal court principles but lacking reference to Part 3A. | Critiqued for overemphasizing rarity and exceptionality rather than necessity; court in current case rejected this approach. |
| R v Thomas (Dean) [2020] EWCA Crim 117 | Criminal court principles on intermediary appointment rarity and criteria. | Referenced and distinguished; court found criminal principles not fully applicable to family proceedings and Part 3A. |
| R v Cox [2012] EWCA Crim 549 | Criminal court guidance on alternative measures to intermediaries and rarity of adjournments for lack of intermediaries. | Referenced but court emphasized family court must apply Part 3A test without overlay of rarity concepts. |
| Oxfordshire County Council v A Mother and others (Intermediary Appointment Refused) [2024] EWFC 161 | Application of necessity test in intermediary appointment considering cognitive assessments and solicitor advocacy skills. | Supported the principle that intermediary appointments must be based on necessity and expert evidence, not convenience. |
Court's Reasoning and Analysis
The court began by reaffirming the legal framework established by Part 3A of the Family Procedure Rules 2010 and Practice Direction 3AA, which require the court to identify vulnerability early and to make participation directions, including the appointment of intermediaries, only when necessary to ensure a fair hearing.
The court emphasized that the test for intermediary appointment is necessity, not rarity or exceptionality, rejecting the approach taken in some High Court decisions derived from criminal law precedents that intermediaries should only be appointed in "exceptionally rare" cases. The court held that frequency or exceptionality are irrelevant to the legal test and that the court must focus on the individual circumstances of the vulnerable person and the proceedings.
Applying these principles to the present case, the court found that the trial judge erred by giving undue weight to the rarity of intermediary appointments and insufficient weight to the evidence of the mother's cognitive difficulties and the complexity and gravity of the proceedings. The judge failed to properly assess whether the mother's participation and quality of evidence would be diminished without an intermediary, did not consider the views of other parties who supported the application, and did not provide reasons in the order for the refusal, contrary to procedural requirements.
The court noted that the mother had received intermediary assistance at earlier hearings, which had been integral to her participation, and that the absence of an intermediary made preparation and conduct of the trial "near impossible" for her counsel. The court also considered the emotional and procedural pressures on the mother, including the serious allegations and potential lifelong consequences of the fact-finding hearing.
The court substituted an order granting the mother's application for an intermediary for all further case management hearings before the fact-finding hearing, the fact-finding hearing itself (including judgment delivery), and legal conferences at court with her legal advisors. It left open the possibility of further applications for intermediary assistance outside court or after the fact-finding hearing.
Holding and Implications
The court's final decision was to ALLOW THE APPEAL and substitute an order granting the mother's application for intermediary assistance as necessary to ensure a fair hearing.
This decision directly affects the parties by ensuring that the mother receives the necessary support to participate effectively in the care proceedings. It reinforces the correct legal approach under Part 3A FPR that intermediary appointments must be made based on necessity assessed on the individual case facts, not on notions of rarity or exceptionality. The ruling clarifies that judges must carefully consider all relevant evidence and submissions, provide reasons for decisions on participation directions, and recognize the importance of intermediary assistance in complex and high-stakes family cases involving vulnerable persons. No new precedent beyond the faithful application of existing rules and principles was established.
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