Court of Appeal issues guidance on use of intermediaries in court proceedings

08 May 2025

By Lucy Barnes, with analysis by Charlotte Youdan.

On 10^th April 2025. the Court of Appeal (CA) handed down judgment on the correct approach to be taken in appointing intermediaries in the successful appeal of Re M (A Child: Intermediaries) [2025] EWCA Civ 440.

What is an intermediary?

Intermediaries are communication specialists that work on behalf of HMCTS to support vulnerable people to communicate more effectively in court proceedings, for example via Communicourt, The Intermediary Cooperative or Triangle. The court’s discretion is relation to directing intermediary assessments appointing intermediaries is governed by FPR 3A and PD3AA.

Background to Re M (A Child: Intermediaries)

The appeal concerned a mother’s application for intermediary assistance in care proceedings involving her 10-month-old child who had suffered a skull fracture. The mother appealed against HHJ Thomas’ decision to refuse her application for an intermediary after she was assessed to require one for an eight-day fact finding hearing due to her complex needs. Her needs included ADHD, Oppositional Defiant Disorder, Asperger’s Syndrome, anxiety and depression.

On appeal:

The CA unanimously allowed the appeal, finding that HHJ Thomas erred in refusing to grant intermediary assistance. The court held that HHJ Thomas paid ‘insufficient attention to the mother’s difficulties’ (paragraph 73-74), instead he relied on previous case law which stated appointing an intermediary would be a ‘rarity.’

At paragraph 7 of Re M, the court offered useful principles to legal practitioners on the appointment of intermediaries in family proceedings:

The court will exercise its discretion within the framework of Part 3A of the FPR 2010 and PD 3AA. The court held that ‘by following them, the court will steer a path between the evils of procedural unfairness to a vulnerable person on the one hand, and waste of public resources on the other.’
The sole test to appoint an intermediary is that it is necessary to achieve a fair hearing. This is a fact-specific exercise.
There must be early identification of vulnerability to ensure efficient case management. Whilst intermediaries are not experts, the court held applications should be approached ‘with similar procedural discipline.’
The court’s powers are wide enough to authorise intermediary assistance for legal conferences outside of court, however separate consideration must be given to these applications.
The mandatory checklist in FPR Rule 3A.7 is an essential reference point to take all relevant factors into account. The weight given to them will be an exercise of judicial discretion.
Any application must be based in evidence for example by way of a cognitive report and, if authorised an intermediary assessment. This information can also come from wider sources such as social workers and children’s Guardians.
Other available participation directions should be considered. The court expects all family lawyers to be able to tailor their communication styles for vulnerable witnesses but equally should not ‘be required to stray beyond their reasonable professional competence.’ The Advocates Gateway guides detailed below provide a wealth of information in relation to participation directions.
The reasons for a decision to approve or refuse participation directions must be recorded in the order.

The court was also critical of tests used in previous judgements. At paragraph 41, LJ Jackson addressed the approach taken in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam), stating: ‘There is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality. Frequency is not a test, and nor is exceptionality. Similarly, the introduction of tests of ‘compelling reasons’ or of adjournments for lack of an intermediary being ‘unusual’ or ‘very unusual’ beckon the court to short-circuit its consideration of the evidence in the individual case.’

Analysis

So, what does this all mean in practice?

Firstly, as legal practitioners if it becomes apparent at an early stage that the client is vulnerable and likely to struggle to understand what is happening in Court, applications for intermediaries should be made as soon as possible and with clear evidence of the difficulties the vulnerable party is likely to face engaging in the proceedings.

However, I don’t think we can expect off the back of this case that all applications for intermediaries will be granted. Advocates in family proceedings will need to ensure that they are familiar with the Advocates Gateway and the recommended toolkits around communicating with vulnerable parties. In determining whether an intermediary is ‘necessary’ the Court is likely to question advocates, especially those with experience as to why suitable adjustments made by those already involved will not suffice in a particular case. This may include the use of simple language, short basic questions, one advocate being nominated to ask questions, which may be less overwhelming in the witness box, breaks etc.

Wherever possible continuity of representation for a vulnerable party will also be extremely important, not least because an advocate that has been involved with the individual from the start will be well placed to advise the Court about their difficulties communicating and understanding even when adjustments are made. This may then lend more weight to any argument on ‘necessity’.

As touched upon on in Re M, an obvious difficulty for a vulnerable party is attending a hearing with only their advocate. It can be challenging for an advocate to be presenting in Court, more so if cross examining, whilst also ensuring that their vulnerable client is understanding and following what is happening. For multiple day hearings it may not be possible, for example for an instructing solicitor to be present throughout, which may mitigate some of these difficulties, so again this may give rise to a greater necessity for an intermediary.

Applications for intermediaries will need to be much clearer if an intermediary is necessary for all or just part of the proceedings and required for legal consultation outside of Court. This will need to be stipulated on any order as we can expect going forward that Courts will no longer approve ‘blanket’ intermediary use for every hearing. Orders must also record the reasons an application for an intermediary was granted/refused and if refused what adjustments are being made in the alternative. A failure to do so, could lead to an appeal.

Ultimately, at the heart of Re M, is the need for all professionals to consider carefully the article 6 rights of vulnerable parties and ensure that they can participate fully in proceedings and to the best of their ability as often there is so much at stake for them.

For the care system more broadly – Lucy Barnes

Re M (A Child: Intermediaries) is a welcome decision in recognising the importance of communication barriers for vulnerable individuals as a barrier to access to justice. The court highlighted the importance of fairness and ensuring that all participants are ‘on an equal footing in light of the importance and complexity of the issues.’As Co-Founder and CEO of Lawyers Who Care, I know that communication is vital for care-experienced people who may be unable to communicate effectively due to the adverse cognitive impacts of trauma, or due to neurodiversity, disability or mental health impacts more broadly. Re M is a welcome decision in this regard because it highlights the requirement for each application for an intermediary to be assessed on a needs-basis, rather than an assessment of exceptionality.

Further, the court echoed the importance of legal representatives adapting their communication styles to vulnerable witnesses: ‘The court is entitled to expect specialist family lawyers to have a good level of understanding of the needs of vulnerable individuals in proceedings and an ability to adapt their communication style.’ There are several important Advocates Gateway guides and other guidance to assist practitioners:

For vulnerable individuals

For disabled and neurodivergent individuals

Further, see the following resources:

Family Justice Council’s Guidance on Neurodiversity in the Family Justice System for Practitionerspublished on 30^th January 2025.
Working Together with Parents Network (WTPN) update of the Department of Health. Department for Education and Skills guide ‘Good practice guidance on working with parents with a learning disability’.
Nuffield Family Justice Observatory’s 2025 Report ‘What are the experiences of parents with learning disabilities or difficulties in care proceedings?’

Lawyers Who Care: Becoming ‘Care Aware’

For law firms and chambers wanting to gain a deeper understanding how trauma and vulnerability impact individuals in the care system as well as give back, join Lawyers Who Care’s mentoring scheme. Lawyers Who Care provides a window into lived experience within the family justice system by delivering mandatory ‘Care Aware’ and ‘Trauma-informed’ training for mentors, to ensure care-experienced voices are heard.

Lawyers Who Care also hosts monthly webinars which often invite guests from the family justice system to discuss key themes, as well as the intersectionality of care experience with protected characteristics and social class, and how these can heighten vulnerability.

About the author(s):

Lucy Barnes is a second six pupil barrister at East Anglian Chambers and CEO and Co-Founder of Lawyers Who Care.

Charlotte Youdan is a Barrister at East Anglian Chambers, joining in 2021, Prior to this she was a family solicitor and advocate specialising in Children Law for 15 years.

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