Guidance on who needs an intermediary and who decides; family proceedings
Who needs an intermediary, when and for what?
Children and young people may be involved as witnesses in fact finding hearings within family proceedings or they may be involved as parties or as intervenors.
The situation with intermediaries in family proceedings is evolving rapidly. In Re X (A child)  EWHC 3401 (Fam), (paragraph 42), the use of an intermediary for a vulnerable teenage witness with Asperger Syndrome was discussed. The judge noted that the absence of an intermediary scheme in family cases led to ‘real obstacles’ finding and funding one. The Family Justice Council Guidelines (2011) in relation to children giving evidence in family proceedings encourage practitioners to consider the use of intermediaries at the ‘earliest opportunity’ (paragraph 14). The advocates gateway toolkit on vulnerable witnesses and parties in the family courts gives useful guidance.
Does every child and young person need an intermediary?
No, it depends on the child or young person, the context and the questioner(s). There are no fixed rules. Young adults with learning disability or significant mental health needs, young children, very traumatised children and children with communication difficulties are particularly likely to meet the threshold (see below).
In the family justice system there is no definition of a ‘vulnerable witness’ or a ‘vulnerable party’.
The Family Procedure Rules (FPR) 2010 set out the overriding objective (rule 1.1 (1)): the court must deal with cases ‘justly, having regard to any welfare issues involved’. This includes the requirement for courts to take reasonable steps to ensure the effective participation of vulnerable witnesses. The Family Courts are not limited by usual courtroom procedures/traditional special measures. Rule 4.1 FPR provides the Family Court with wide-ranging and flexible powers of case management, including the power to ‘take any other step or make any other order for the purpose of managing the case and furthering the overriding objective’. Early identification and notification is essential when a witness or party is identified as being vulnerable such that their ability to effectively participate in the hearing is compromised. Practitioners should ensure that the Family Court is notified at the earliest opportunity so that it can consider what, if any, adjustments should be made to ensure that hearings are fair.
Who decides if an intermediary is needed?
If the child or young person has already given a police interview, the police may have identified the need for an intermediary assessment early in the investigation. It is best practice to use the same intermediary in family proceedings where possible.
Pre-hearing, family court practitioners may identify the potential need for an intermediary assessment. The intermediary role is to assist by providing an independent, professional assessment and clear recommendations. We may recommend that no intermediary is needed, or that if adjustments are made then no intermediary is needed. The judge decides whether an intermediary is needed.
What is the ‘two point test’ for an intermediary?
Guidance is still evolving in family proceedings; the guidance below is from criminal proceedings.
The ‘two point test’ is set out in Achieving Best Evidence guidance: if a child seems unlikely to be able to recognise a problematic question or tell the questioner that they have not understood, assessment by an intermediary should be considered. (Page 27)
Similarly, the Equal Treatment Bench Book 2013 provides that assessment by an intermediary should be considered if the person seems unlikely to be able to recognise a problematic question or, even if able to do so, may be reluctant to say so to a questioner in a position of authority. Studies suggest that the majority of young witnesses, across all ages, fall into one or other or both categories. (Paragraph 46, Chapter 5)
Finally, from the 2015 Criminal Practice Directions: Consider assessment if a child under 18 seems unlikely to be able to recognise a problematic question or, even if able to do so, may be reluctant to tell someone in authority. (Paragraph 3F.5)
Is an intermediary likely to be needed for specific groups of children and young people?
In the criminal courts there is specific guidance for child sexual abuse: Intermediaries should be considered in all cases of child sexual abuse, not just those involving very young witnesses, and if not involved earlier in the case, they should still be actively considered in advance of the trial as a means of supporting the victim giving evidence in court. Children and young people do not approach communication in the same way as adults and ability across all age ranges can vary considerably. Guidelines on Prosecuting Cases of Child Sexual Abuse (paragraph 85).
There is some general guidance: for children up to 11, there should be a presumption that assessment is appropriate. Once the child's requirements are known and discussed at the Ground Rules Hearing, the Registered Intermediary may agree that his or her presence is not needed for trial. Criminal Practice Directions (paragraph 3F.5).
At what point in the process should there be an intermediary assessment?
The Guidelines on Prosecuting Cases of Child Sexual Abuse encourage early involvement of an intermediary:
The assistance of a Registered Intermediary should be considered at (an early) stage. They can help the victim give their account in the interview and understand what is being asked of them. The earlier the intervention the more likely it is that successful rapport building will take place and the child or young person will be able to give their best evidence. Even if the victim appears to understand, they are unlikely to be familiar with the terms sometimes used in questions posed in interviews, or may not understand a term in the same way as the interviewer, and an Intermediary can ensure that age appropriate language (or developmentally appropriate language) is used and terms are explained. (Paragraph 37).