James Holmes, of the Garden Court Family Law Team, appeared on behalf of the Family Law Bar Association, who had been given permission to intervene by written submissions only.
James was led by Lucy Reed KC of St John’s Chambers.
The Court of Appeal has today handed down judgment in the case of M (A Child: Intermediaries) [2025] EWCA Civ 440, following the mother’s successful appeal against HHJ Thomas’ decision to refuse the mother’s application for intermediary assistance in ongoing care proceedings.
In addition to dealing with the specific facts of the appeal before it, the court considered the recent guidance from the President of the Family Division and decisions of Lieven J and Williams J in the cases of West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam) and Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam).
The Court of Appeal said at paragraph [36] when referring to previous decisions of the Court of Appeal and the statutory guidance that:
- ‘In the three appeals about intermediaries that it has heard since Part 3A came into effect, this court has taken its provisions at face value. Considering that the regulatory framework is recent, it is unpromising ground for a wider exercise in judicial interpretation.’
The Court of Appeal was critical of the decisions of Lieven J and Williams J, in so far as they appeared to add unnecessary gloss to the already clear test contained within Part 3A Family Procedure Rules 2010 and Practice Direction 3AA. The Court stated at paragraph [41] that:
- ‘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.’
As to the recent Presidential Guidance, whilst noting that Paragraphs 16 and 17 of the Presidential Guidance contains valuable guidance about cognitive assessments, the Court of Appeal notes that ‘paragraphs 10 and 12, which are framed with reference to rarity’, are subject to the same reservations they have in relation to the decisions of Lieven J and Williams J.
Going forward, it is clear that when considering an application for an intermediary assessment, the court will be expected to apply the framework provided for by Part 3A and Practice Direction 3AA. When applying this framework, the Court of Appeal notes at paragraph 26 and 27 the following;
- ’26. In making its judgement about vulnerability and participation directions, the court must have regard in particular to the matters listed in FPR rule 3A.7 when deciding what is necessary in the case before it. There will often be a cognitive assessment. If it recommends the use of an intermediary, it must evidence why that is necessary and explain why alternative means are inadequate. It would be helpful for the report to consider the party’s participation at case management hearings, legal conferences, and when giving evidence. If the court then approves an intermediary assessment, the cognitive report should be supplied to the assessor. The intermediary assessment itself will then form part of the evidential picture in relation to vulnerability and measures.
- 27. The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate. Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act. The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement. As the process is a collaborative one – PD3AA paragraphs 1.4 and 3.1 – the court may also benefit from submissions made by other parties, who may also have their own interest in the decision. The local authority and Children’s Guardian will wish to ensure that the proceedings rest on firm foundations and, depending on the case, individual parties may have their own perspectives.’
