Re M [2025] EWCA Civ 440

In February 2024, Rachel Chan provided a short case note on the case of West Northamptonshire v. KA and others [2024] EWHC 79 (Fam) (19 January 2024).

This case and two other High Court decisions (Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) and Oxfordshire County Council v. A Mother and others (Intermediary Appointment Refused) [2024] EWFC 161 were reviewed together with the Local Practice Note: Adhering to the Public Law Outline in London 28 November 2024 and the Practice Guidance: The Use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court 23 January 2025 in the Court of Appeal case of Re M [2025] EWCA Civ 440.

Re M [2025] EWCA Civ 440

The case of Re M was an appeal against a decision by a Circuit Judge refusing the Mother’s application for an intermediary to assist her during a fact finding hearing in care proceedings where her baby had suffered a skull fracture.  The mother had been assisted by an intermediary at three previous case management hearings.

Permission was granted to the Family Law Bar Association and the Association of Lawyers for Children to intervene by way of written submissions only, submissions can be viewed here. The Transparency Project also reported on this case which was streamed live.

In the judgment, before considering the appeal itself, Jackson LJ summarised the applicable principles at para 7. In summary, the court will exercise its judgement within the framework of Part 3A of the Family Procedure Rules and Practice Direction 3AA. The test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing. Decisions are person-specific and task-specific, and the introduction of other tests upsets the balance struck by the FPR and may draw attention away from the circumstances of the individual case- para 7(2).

There must be early identification of vulnerability where it exists. The court’s powers are wide enough to permit it to authorise intermediary assistance for legal meetings outside the court building although support that is necessary in the courtroom may be unnecessary in a less pressured setting.  The mandatory checklist in FPR rule 3A.7 is an essential reference point to ensure that the factors relevant both to the individual and to the proceedings are taken into account. The weight to be given to them is a matter for the court.

An application for an intermediary (under Part 18 procedure and not Part 25 as intermediaries are not experts) must have an evidential basis, commonly in the form of a cognitive report or an intermediary assessment.  Other evidence may come from the social worker or Children’s Guardian and the court can also take account of submissions on behalf of the vulnerable person and other parties.  It is for the court to decide what is necessary to achieve a fair hearing in the individual case.

When considering whether an intermediary is necessary, the court will consider other available participation directions.  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.  Intermediaries should clearly not be appointed on a ‘just in case’ basis, or because it might make life easier for the court, but equally advocates should not be required to stray beyond their reasonable professional competence to make up for the absence of an intermediary where one is necessary.  Reasons for a decision to approve or refuse participation directions for a vulnerable person must be recorded in the order.

The Court of Appeal proceeded to look at the development of the law in respect to intermediaries and reviewed the three High Court cases, the London Practice Note and the Guidance referred to above.  Significantly, at paragraph 41 when reviewing the case of West Northamptonshire states:

‘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.’

References to ‘very rare’ or ‘rare’ in the case of Re X and Y, ‘are not a substitute for a straightforward application of the rules’- para 44.

Finally, of note, at para 51:

‘Any perception on the part of the senior family judges that intermediaries are being appointed too freely must be treated seriously.  But as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.’

The appeal

The Court of Appeal held that the Circuit Judge ‘not unreasonably took account of the obiter statements of the High Court, which were to a different effect and focussed on the rarity of cases in which an intermediary should be ordered.  That placed him in a difficult position and it is inescapable that he was strongly influenced by the emphasis on the asserted rarity of the order he was being asked to make’- para 72.  Whilst it was an error of approach, it was not one for which the judge can be criticised.

Evidence of the mother’s functioning with her ability to participate meaningfully and without undue stress (in this case the cognitive and intermediary reports) needed closer consideration and if were to be rejected, some explanation.  Counsel conducting the fact finding hearing without the benefit of a representative from her instructing solicitors, meaning that she would have to assist the mother whilst calling and cross-examining witnesses was something the judge should have had regard.  The decision not to seek the views of other parties was also unhelpful as the judge would have found that each of them, for their own reasons, supported the mother’s application.  The judge ought to have considered whether it was necessary for the mother to have an intermediary in relation to the preparation of her written evidence.  The pre-trial review, despite a previous court direction, was not used as a ground rules hearing.  No alternative arrangements were put in place when refusing an intermediary for the whole fact finding hearing.  Reasons for the refusal of the application were not recorded in the order.

The Court of Appeal allowed the mother’s appeal and substituted an order granting the mother’s application to be assisted by an intermediary at further case management hearings before the fact finding hearing, the fact finding hearing itself to include delivery of judgment and importantly, legal conferences between the mother and her legal advisers at court on the occasions set out above.

Re M [2025] EWCA Civ 440 judgment.

Rachel Chan was led by Gemma Farrington KC, represented the Child through their Guardian, instructed by Emily Carter-Birch of Child Law Partnership.

10th Apr 2025

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Rachel Chan

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