Financial Remedy and Private Law Children barrister, Patrick Goodings, explores the use of Intermediaries in the Family Court following the recent High Court case of West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 (Fam).
‘Hot off the Press’
The facts of this case are of note, especially due to a number of slightly ‘out of the ordinary’ factors (including, an ultimately withdrawn, application for Wasted Costs against an intermediary). However, of particular interest was the guidance issued by Mrs Justice Lieven on the use of intermediaries in the Family Court.
In the preamble to the judgment, the Judge remarks:
“I will set out some guidance on the use of intermediaries in the Family Court, particularly given the apparent paucity of such guidance and the differences that seem to now arise between the practice in the Family Court and that in the criminal courts”.
Use of Intermediaries
The use of intermediaries has expanded almost exponentially over recent years. There are many incredibly talented intermediaries who can provide significant assistance in the most difficult of cases. On reading this Judgment, the Judge does not play down the importance of intermediaries but seeks to standardise the approach taken when a Court is deciding to appoint one. It is likely to have widespread application and has the potential to become common parlance within the Family Court (vis-à-vis ‘Re BS analysis’ or ‘Re A Compliance’) especially given the penchant family lawyers have for snappy diminutives!
The ‘Northamptonshire Guidance’ is, in effect, made up from an exhaustive analysis of R v Thomas (Dean) [2020] EWCA Crim 117 which incorporated the Criminal Practice Directions 2015.
When distilling down the guidance, Lieven J remarks that:
“although there are obvious and important differences between Family Court cases and those involving criminal charges, the reasons for the appointment of intermediaries and their function in assisting those with communication difficulties facing important litigation, are essentially the same”.
The Guidance
- Intermediaries are appointed, whether in criminal or family cases, to ensure that the individual in question can participate in the proceedings so that their fair trial rights are protected. Therefore, the guidance of the Court of Appeal in R v Thomas (Dean) is … applicable to the consideration of the same issues in the family justice system, albeit the Court will need to have close regard to the nature of the case and the evidence that the individual needs to engage with.
- It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a “just in case” basis. Thomas [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such 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, Thomas [36];
- Intermediaries should only be appointed if there are “compelling” reasons to do so, Thomas [37]. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549 at [29];
- In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial, Thomas [37];
- The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];
- If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];
- At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that “evidence is adduced in very shortly phrased questions” and witnesses are asked to give their “answers in short sentences”. This was emphasised by the Court of Appeal in R v Rashid (Yahya) [2017] 1 WLR 2449.
The above guidance, the Judge states, is “directly applicable to the Family Court”. The first and normal approach should be for “the judge and the lawyers to ensure that simple language is used and breaks taken to ensure that litigants understand what is happening”. There is also a particular emphasis on advocates being familiar with the advocates gateway.
Lieven J adopts the following conclusion; that ... “it is the role of the judge to consider whether the appointment of an intermediary is justified. It may often be the case that all the parties support the appointment, because it will make the hearing easier, but that is not the test the judge needs to apply”.
Conclusion
The use of intermediaries remains an essential pillar of the Family Justice System. As highlighted earlier, their inclusion and careful assistance can be of significant importance. This ‘Northamptonshire Guidance’ is an incredibly helpful and widely applicable ‘road map’ to assist the Court and advocates in ensuring their appointment is appropriate. A major change is likely to be a proper consideration of the days on which an intermediary is required to attend Court. It is also a forthright reminder for advocates to ensure that their style, when engaging with vulnerable parties, incorporates the advocates tool kit. Vulnerable witness training is likely to be essential.
Patrick Goodings
Patrick has a particular expertise in financial proceedings arising from relationship breakdown. He advises and represents clients with assets from the very small to the substantial in all aspects of financial remedy proceedings as well as under Schedule 1 CA 1989 and TOLATA 1996.
In addition, Patrick has considerable experience in Child Protection matters. He deals with cases involving the most serious of issues, including domestic abuse, parental alienation and emotional abuse, physical abuse including sexual abuse and those with international and complicated relocation arguments.
Patrick is also instructed in child abduction matters and has dealt with High Court applications under the Hague Convention as well as international cases involving Non-Hague Countries.
His practice is recognised in the leading legal directories, recent entries include:
"A highly skilled, level-headed advocate, who is approachable and well-prepared"
"Patrick is a confident and committed advocate - efficient and incisive. He is empathetic and very personable, with very sound judgement."
"Patrick has an excellent capacity for putting parties and witnesses at ease. He always strives to ensure that fairness is achieved for vulnerable parties. He always demonstrates willingness to go the extra mile for his clients and represents them fearlessly and with endless energy."
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