It is perhaps surprising that family law and child care cases in particular have taken so long to provide systematic support for vulnerable parties. It is now possible to ask the court to consider appointing an intermediary – someone specialised in communication (often through studying psychology or speech & language therapy) – who can provide support which ensures that a client with, for example, a learning disability or a mental health problem, can fully engage in the court process in terms of understanding the written materials presented to the court, follow what happens in the court room and give evidence.
A full toolkit is available for advocates in relation to the intermediary scheme on a website called The Advocate’s Gateway
The toolkit for family lawyers is here
Much of the general advice & guidance on the website is aimed at criminal cases but it is also relevant to family lawyers. For example there are particular guides to framing questions for people with specific difficulties such as autism, learning disabilities and specific learning difficulties or other disabilities. There are also links to podcasts and a training film.
Family Practitioners should always consider whether a client needs an intermediary if:
- They have a learning disability or a specific learning difficutly which makes communication challenging
- They have a mental health condition particulary if it impacts on their ability to communicate under stress
- They are under 18
- They have a phsycial disability which impacts on their communication or ability to manage stress
That is not to say that an intermediary is required in every case in which one of these features is present and in every case it will be important to talk it through with the client and explain what may be on offer. Vulnerable parties can be understandably sensitive about their vulnerability and find the idea of being perceived as needing extra help insulting rather than supportive, however well-intentioned.
The intermediary services will not, however, accept that a client needs an intermediary on the basis of a report from another expert, for example a Psychologist, but will require to carry out their own assessment. They will, of course, take account of any such evidence.
If you think a client will need an intermediary you will need to raise it with the Judge at the earliest opportunity ideally before or at the CMH.
In theory it is necessary to issue an application under Part 25 for any assessment of whether or not an intermediary is necessary but not for the appointment of the intermediary once the court have accepted that an intermediary should be provided (when they are not providing an opinion but a service necessary for access to justice).
In practice such an application is often not required by the court, particularly if the need for an assessment only becomes clear shortly before the CMH (for example, because of a cognitive assessment identifying learning disability) and it will cause unwanted delay to adjourn for a further hearing just to deal with the arrangements for assessment.
You could invite the court to record in a preamble:
It being recorded that the court considers that no part 25 application need be made as a step to obtaining an intermediary for mother and that mother is likely to need an intermediary to be assigned as soon as possible because (eg on the basis of the psychological report identifying that mother has a learning disability)
From the case law it is now clear that the legal aid agency is not required to pay for the services of the intermediary. These costs should be borne by HMCTS.
However, it is far less clear who should pay for the assessment part of the processthe legal aid agency is refusing to cover it or to give prior authority meaning that solicitors are reluctant to begin the instruction process without funding approval. I understand that the President of the Family Division is consulting on giving Judges direct powers to authorise the funding of such assessments but until this is clear creative ways of ensuring funding are needed
Zenith Chambers (no longer operating) suggested the following:
“The debate between HMCTS and the LAA will continue but the key practical point is that when instructing an intermediary to undertake an assessment, the Order must be clear that the intermediary is not solely for the purpose of establishing whether a party can give evidence nor is an intermediary merely being instructed to benefit the Court, but in fact will be of a wider practical purpose. For example:
‘The assessment of the intermediary would benefit all parties including the representatives of the parents in knowing what was required in terms of communicating with the parents both in a court setting and outside of court in client meetings and would also assist with meeting professionals including the Children’s Guardian.’
This hopefully will be acceptable to the LAA to enable parties to share the costs of intermediary assessments until further case law clarifies the position as to who should pay.”
I am trying to find out whether this does work in practice and would be very interested to hear from anyone with experience of this working or not working.
There are two possible practical solutions to the funding impasse which definitely work.
You can invite the local authority to pay for the assessment. It can be argued that the local authority more than anyone else in the case needs to know how best to communicate with the parent as they go through assessments by social work professionals during the proceedings. It can also save a lot of unnecessary delay in the proceedings and before such assessments can properly begin.
You can also consider inviting the court to list the case for a ground rules hearing with only the advocate for the person to be assessed attending court with them and the intermediary service in the morning and all parties attending for a ground rules hearing at 2pm at which the intermediary gives oral feedback to the court about whether an intermediary should be appointed and how the case should be managed to ensure that there is a fair hearing. This will cover things like how often the client will need a break, what sort of language to use, whether questions need to be submitted in advance of the hearing (to the intermediaries only for vetting) and any other special measures which might be necessary (such as recording evidence in chief, giving evidence by video link etc).
A suitable direction could read:
The matter is listed for a Ground Rules Hearing at TIME on DATE at BLANK Family Court before JUDGE to consider the PARTY’s need for an intermediary. The attendance of all parties except that of the PARTY and his / her representative and INTERMEDIARY SERVICE are excused until 2pm.
The costs of this should then be covered by HMCTS and it would probably be as well to spell this out in the directions. I understand from an intermediary service that HMCTS are content with this way forward which avoids delay and is more cost effective than assessment and separate attendance at a later date for a hearing.
In practical terms in advance of any hearing at which this issue needs to be looked at you should identify an intermediary service which can accept the work within a reasonable timescale and find out from them the first date on which they could make an intermediary available to carry out an assessment
Possible intermediary services include:
Triangle (Young people up to 25 only)
None of this helps in respect of vulnerable witnesses who are not parties or in relation to support outside the court environment.
The guidance refers to witnesses rather than parties so that intermediaries should be made available regardless of party status. The real difficulty is who will take charge of organising and funding the intermediary assessment and persuading the court that an intermediary is needed. Unlike parties in care proceedings the average witness will not necessary undergo a cognitive assessment so that their vulnerability may not be appreciated until a late stage unless it is glaringly obvious as in the case of a child witness.
In practice I am told by one of the intermediary services and by practitioners that local authorities are funding the assessments of child witnesses and no doubt any witness whose evidence they wish to rely on. They may also fund an intermediary for key meetings with assessors and if they do not it may be possible to cross-examine them on the basis that the assessment has not been fair. It is less clear whether they would be willing to do so to enable witnesses for other parties who may not be giving evidence in favour of the local authority.
I also understand that in extremis some solicitors are absorbing the costs of intermediary attendance outside court.
It can be helpful to ask the court when listing any hearing to provide for very early attendance at court so that the support of the intermediary can be maximised. I understand that some Judges are willing to authorise funding for the attendance of an intermediary for the purpose of a conference away from court but this is unpredictable – if your local Judge will wear it, it should be included in the directions.
In relation to support outside court there is a patchy system and it does not provide registered intermediaries but advocates. Some local authorities have service level agreements with advocacy services and local authorities really should provide support at least for meetings which they are organising as part of evidence gathering. They are not typically willing to help with meetings to give instructions to solicitors. From what I can gather this support will not be funded by the legal aid agency unless they can be persuaded that it is necessary for interpretation (such as deaf interpreters). There are some voluntary sector run services such as
Unfortunately these services may be quite specific as to the client group they can support and they are not readily available in all areas.
