In M (A Child: Intermediaries) [2025] EWCA Civ 440, the Court of Appeal reaffirmed the governing legal test for appointing intermediaries in family proceedings. It allowed an appeal against a judge’s refusal to direct intermediary support for a neurodivergent mother, emphasising that the correct threshold under Part 3A of the Family Procedure Rules 2010 (FPR 2010) is necessity, not exceptionality. This judgment clarifies the scope of participation directions in cases involving vulnerable parties, while also addressing the problematic judicial tendency to treat intermediary use as an extraordinary measure.
Factual Background
The appeal arose in care proceedings concerning a ten-month-old child who sustained a skull fracture. Suspecting non-accidental injury, the local authority issued proceedings. The 22-year-old mother had diagnoses including ADHD, oppositional defiant disorder, Asperger’s syndrome, depression, and anxiety (para 53). Concerns about her ability to participate effectively prompted two professional assessments.
Dr John Dowsett, consultant psychologist, concluded that her difficulties with auditory memory and verbal comprehension significantly impaired her capacity to follow and engage with the proceedings (para 56). Ms Georgina Bradley, an intermediary from Communicourt, independently advised that support was necessary to enable effective participation. Although she did not have access to Dr Dowsett’s report, she recommended intermediary assistance at all hearings and legal conferences, including during the preparation of the mother’s written evidence (para 58).
Intermediary support was subsequently provided without objection across several hearings (paras 59–61). However, at the pre-trial review on 15 January 2025, the judge declined the mother’s application for continued support at the fact-finding hearing and during the drafting of her statement (paras 61, 68–69). The mother appealed.
Legal Framework and Issues
Part 3A of the FPR 2010, together with Practice Direction 3AA, governs the court’s duties to vulnerable parties. Rule 3A.4 requires the court to consider whether a party’s participation is likely to be diminished by reason of vulnerability, while rule 3A.5 mandates consideration of appropriate participation directions (para 11). Paragraph 5 of PD3AA identifies intermediary assistance as one such measure.
The central issue on appeal was whether the judge applied the correct legal test in refusing the application (para 70). The mother contended that the judge had erred by treating intermediary appointments as “exceptionally rare” (para 67), relying on High Court decisions such as West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 (Fam) and Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam).
The Appeal
The Governing Test: Necessity, Not Exceptionality
Delivering the lead judgment, Lord Justice Peter Jackson reaffirmed that the appropriate test under Part 3A is one of necessity. While the judge at first instance had clearly intended to secure fairness, his reliance on the concept of “exceptionality” introduced an improper legal threshold not supported by the rules (paras 71–73). The Court made clear that frequency is not, and must never become, part of the legal test (para 41).
Expert Evidence and Judicial Consideration
The Court noted that the judge had failed to engage with the unchallenged expert evidence of Dr Dowsett and Ms Bradley, both of whom concluded that intermediary support was essential for the mother’s participation (paras 56, 58). These recommendations were consistent with the mother’s prior supported attendance at hearings (paras 59–61). While the judge expressed confidence in the court’s ability to ensure fairness without an intermediary, the Court of Appeal held that such general assurances could not override clear, evidence-based recommendations (paras 64–65, 68–69, 73).
Participation Extends Beyond Oral Evidence
The Court also confirmed that participation directions are not confined to the giving of oral evidence, as required by rule 3A.4 (FPR 2010, Pt 3A). As defined in PD3AA, meaningful participation encompasses understanding the proceedings, communicating with legal representatives, and preparing written evidence (para 34). Ms Bradley’s recommendation that support be extended to legal conferences and the drafting process was not addressed by the judge, a material omission (para 58).
Procedural Oversights and Rule 3A.9
The Court identified several procedural shortcomings in the handling of the application. The intermediary report was not included in the hearing bundle and was introduced mid-hearing without any supporting documentation clarifying the specific purpose of the proposed support (para 64). In addition, submissions were not invited from the other parties, all of whom supported the application (para 65). The final order also omitted reasons, contrary to the requirement under rule 3A.9 that participation direction decisions be recorded in writing (para 73(8)). These cumulative oversights contributed to the decision’s vulnerability on appeal.
Significance
The judgment firmly restates that intermediary appointments must be assessed according to the test of necessity as set out in Part 3A. References to “exceptionality” or “compelling justification,” though common in recent first instance judgments, have no basis in the rules and risk distorting judicial reasoning (paras 41, 71–73). The Court also reinforced that participation is a broader concept than courtroom evidence alone, extending to all facets of legal engagement (para 25). Crucially, the judgment underscores the importance of courts properly engaging with expert assessments and complying with procedural safeguards, particularly when the fairness of proceedings is at stake (paras 64–65, 69, 73).
Conclusion
The Court of Appeal allowed the mother’s appeal, substituting an order for the appointment of an intermediary in all future court hearings and legal conferences up to the conclusion of the fact-finding hearing (para 74). Any further applications for intermediary assistance are to be determined by the trial judge.
This decision provides authoritative clarification on the use of intermediaries in family proceedings. It affirms that fairness for vulnerable individuals rests on the consistent and principled application of the legal framework.
