High Court judge gives guidance on use of intermediaries in Family Court

The High Court has given guidance on the use of intermediaries in the Family Court, in a case concerning a 2-and-a-half year old girl, which was in week 127 at the hearing last month.Outlining the background to the case in West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam), Mrs Justice Lieven said the local authority application was for a care and placement order, and the applications were made almost immediately after the child (X)’s birth. The judge noted that the delay has been “highly detrimental” to X's best interests, “whether or not the orders sought are ultimately made”.The threshold pleaded is based on the risk to X from the mother’s relationships featuring domestic abuse, the mother’s unstable mental health, and her alleged inability to recognise dangerous and risky situations. The mother is profoundly deaf. The High Court was asked to consider whether there needed to be a deaf intermediary for the mother ("M") for the entirety of the hearing.

Counsel for M submitted that this is a case which requires M to have a deaf intermediary throughout the 5-day hearing, as well as the two deaf interpreters. Counsel for West Northamptonshire made submissions about the particular difficulties faced by deaf interpreters where the individual has a "hearing" intermediary. Mrs Justice Liven said: “It was clear from those submissions that there were particular challenges in this case, given the combination of communication and cognitive issues faced by the M.”

Outlining relevant caselaw, the judge noted that the position in respect of the appointment, qualification and duties of intermediaries in the family justice system is “not clearly set out either in the Family Procedure Rules ("FPR") or in any Practice Direction”.

FPR r3A.1 defines an intermediary as follows:

"… [I]ntermediary means a person whose function is to –

(a) communicate questions put to a witness or party;

(b) communicate to any person asking such questions the answers given by the witness or party in reply to them; and

(c) 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…"

Mrs Justice Lieven said: “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 in my view applicable to the consideration of the same issues in the family justice system”. She noted that at paras 36 to 42 [in R v Thomas (Dean)] the Court of Appeal went through the relevant considerations for the appointment of an intermediary, and the alternative strategies that might be adopted, to ensure that a defendant's ability to properly engage in proceedings and Article 6 rights were protected.

The judge said: “The following principles can be extracted:

  1. 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.
  2. 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];
  3. Intermediaries should only be appointed if there are "compelling" reasons to do so, Thomas[37];
  4. 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];
  5. 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];
  6. 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];
  7. At [21] in Coxthe 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 inR v Rashid (Yahya) [2017] 1 WLR 2449.

Mrs Justice Lieven noted that these points were “directly applicable” to the Family Court.

She said: “Counsel submitted that there was a need for intermediaries because relevant parties often did not understand the proceedings and the language that was being used. However, the first and normal approach to this difficulty is for the judge and the lawyers to ensure that simple language is used and breaks taken to ensure that litigants understand what is happening.

"All advocates in cases involving vulnerable parties or witnesses should be familiar with the Advocates Gateway and the advice on how to help vulnerable parties understand and participate in the proceedings. I am reminded of the words of Hallett LJ in R v Lubemba [2014] EWCA Crim 2064 at [45] "Advocates must adapt to the witness, not the other way round". A critical aspect of this is for cross-examination to be in short focused questions without long and complicated preambles and the use of complex language. Equally, it is for the lawyers to explain the process to their clients outside court, in language that they are likely to understand."

She noted 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."

Mrs Justice Lieven found that the appointment of a deaf intermediary for M in this case was necessary for the entirety of the hearing.She said: “The M's communication issues here are profound, both because of her deafness, but also the further issues highlighted by Dr O'Rourke, (a deaf specialist).

“These issues go well beyond the fact that she is profoundly deaf and encompass wider communication difficulties. It also appears that there is a particular problem with the use of a hearing intermediary for a person who is deaf, given the very specific interpretation issues involved with British Sign Language.” Although noting it might be possible to determine parts of the trial where it was less necessary to have the intermediary present, the judge accepted that there was a “significant risk” that M would then be unable to fully understand what was happening in the trial.

She said: “In most cases, I would take the view that it was the job of M's lawyers to ensure that she understood what was happening through explanations at the breaks during the hearing day. “However, I accept that that would be a very onerous, and potentially not possible, on the facts of this case because of the particular issues.” She concluded by stressing that it is of the “utmost importance” that the case is not further adjourned, and the final hearing is effective