John Vater KC gives his thoughts on the recent Practice Guidance on the use of Intermediaries
17th Mar 2025 | Blog
‘Make do and Mend’: Practice Guidance on the use of Intermediaries
The views expressed in this paper are mine and mine alone. They are not to be taken as representing the views of Harcourt Chambers as a whole, or any of the other Chambers to whom I am professionally affiliated or any of their individual members. They are also not to be taken as representative of the views of any of the professional associations of which I am a member.
The President’s recently published Practice Guidance: The Use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court reproduces, but in the form of ‘guidance’, the views expressed by Lieven, J. and Willams, J. in West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam), and X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam). As many practitioners will already be aware, these decisions ‘re-set’ the landscape for the instruction and appointment of intermediaries in children’s proceedings.
Some advocates may well sympathise with the view that assessment by, and the appointment of, intermediaries had become something of an ‘industry’. It did feel, frankly, that assessment by and appointment of intermediaries (often for the whole of the process) had almost become a ‘default’ position in many cases. I have experience of cases where the nature and extent of the ‘special measures’ recommended and adopted left me wondering whether the forensic process had been ‘hollowed out’ to such an extent that the witness’s evidence became effectively worthless, and instead of ‘empowering’ a vulnerable witness to give their ‘best evidence’, all we had achieved was to humiliate and embarrass them for no forensic purpose. Moreover, when intermediaries were appointed, individual experiences of their effectiveness or usefulness differed. At one end of the spectrum, one might have an intermediary whose approach was rather ‘diffident’; at the other, we have all had experiences of intermediaries whose role was absolutely essential, critical for a client’s effective engagement in the proceedings.
Given ‘the state we’re in’, where resources are scarce and likely to become even scarcer, it seemed inevitable, frankly, that attention would turn, at some point, to the cost efficiency of this whole area. The increased spend on intermediaries and their assistance (referred to by Williams, J in the X and Y case) has been exponential. And let us not beat about the bush: most practitioners will see this for what it is; a drive to save money in (yet another) corner of the system. None of us would argue that we have a collective responsibility to use the available resources in the most effective way, but many would observe that there must be a limit to cost cutting: it must not come at the price of justice to children and their families.
The “guts” of the Guidance is to be found in a single paragraph (which is effectively ‘lifted’ from appellate authority in the context of the Criminal Justice System):
’12. Vulnerability covers a wide spectrum. Only towards the far end of the spectrum will there be cases where an intermediary is necessary for the giving of evidence. Only at the very far end of the spectrum will there be cases where an intermediary will be required for the whole of the hearing and only in the very rarest of cases will an intermediary be necessary to enable the party to give instructions in advance of the hearing or be required for conferences.’
The Guidance then refers to the Advocates’ Gateway and the ‘toolkits’ available therein, and invites all practitioners to familiarise themselves with them.
The ‘mood music’ is deafening: there will be fewer intermediaries in Court during the vulnerable witness’s evidence; there will be even fewer present to assist with the explanation of the rest of the evidence to the vulnerable witness; and the presence of an intermediary to assist with pre (or presumably post) trial preparation will hardly ever happen. Advocates and their instructing teams are expected to prepare cases, and conduct them, in ways tailored to their client’s identified needs (presumably in many cases identified by the lawyers themselves).
Public law practitioners take a huge pride in their ‘client care’ skills. It is undoubtedly an essential part of the skillset of any effective practitioner to tailor their approach to the needs of vulnerable clients. Every one of us should be proud of those skills, often engaged in the most dreadful circumstances. Sometimes they are undervalued and underestimated by the ‘powers that be’, perhaps because they do not see the work we all have to do ‘behind the scenes’ (with or without intermediary assistance) or perhaps because they do not, for whatever reason, understand it. We are not, of course, qualified to deal with parties whose vulnerabilities are at the more serious end of the spectrum, and where that line should be drawn will be a matter for debate and judicial decision in individual cases. But, in principle, we are equipped to assist vulnerable clients to participate effectively in the litigation because those are the skills we possess and that is what makes highly skilled, specialised representation by people like us so important. The minute we lose sight of that, we risk losing our raison d’etre in these cases.
So, in principle, the idea that we can save money by pushing more of an ‘intermediary’ type role onto the advocates and legal teams is at least feasible, not least because we are victims of our own success: we are so good at what we do, why do we so routinely need intermediaries? We all take such a pride in ensuring that our clients are effectively represented, and able to engage in the process, that none of us would permit the absence of an intermediary to erode our own, or our client’s, performance. Everyone knows that, including the holders of the purse strings. For years, now, every one of us has been working in an environment with ever dwindling resources, and with ever increasing pressures, not only because of workload but also how the Courts demand we manage that workload. We have continued to provide representation at the highest levels despite all of that, and very often through our good-will, through our determination to work when we shouldn’t be expected to work, by forcing hearings and meetings into our diaries when frankly we shouldn’t, and by regularly working for free. Whilst undoubtedly cynical, it is not unreasonable for others to assume that putting us under yet more pressure by cutting back on intermediary assistance will make no difference to the quality of service we will provide, because we have always, despite the pressures, provided excellence without compromise, so often to our personal detriment. Perhaps we are perceived as the infantry, always ready cheerfully to do whatever is demanded of us, whatever odds are against us, at whatever cost to us, because we have a willingness to serve and a vocation for service.
As ever these days, in the Family Justice System, there are so many elephants in the room that it is hard to breathe.
The first is that the fewer intermediaries we have in the courtroom, the longer trials will take. As an example, in a recent trial of mine, the intermediary was giving contemporaneous explanations of the oral evidence to a party as the witnesses were giving evidence. That meant we had fewer, and shorter, breaks. Each evening, the intermediary drafted a note of the previous day’s evidence, for the vulnerable party, in appropriate language and incorporating pictures and drawings. If the responsibility for doing all of that had fallen on the advocate (with or without the increasingly rare presence of an instructing solicitor: and that is not a criticism but a reflection of the pressures we are all under) I suspect we would have had double the number of breaks, and the trial would have lasted 3 or 4 days longer. Either that, or the representatives would have come under pressure to do the same job in a shorter time. There is no doubt in my mind that, had the issue been decided after this Guidance, an intermediary would not have been appointed for the duration of the trial.
What of existing Orders for intermediary assistance? Will they be reviewed in light of the Guidance? Are there going to be cases where, months into the litigation, either the intermediary will disappear, or their role suddenly curtailed? It would cause obvious problems, but I would not be surprised in the least if some Courts reviewed pre-existing decisions despite those obvious potential problems.
It may be that the money saved by having fewer intermediaries, and curtailing their role when we do have them, will sound in increased sitting days. That is obviously to be welcomed. But we will need them, to accommodate the length of trials in the absence of intermediary assistance, or with curtailment of it. It is, to some extent, and not for the first time, a false economy.
The second is this. Practitioners are already routinely in conflict with the Court about time-estimates, witness requirements, and the necessity of oral evidence from experts. We are already struggling to discharge our professional responsibilities with imposed and clearly inadequate time estimates, sometimes deliberately imposed to prevent cases falling into the VHCC regime (which has not been increased, even in line with inflation, for decades, and is, when analysed in terms of hourly rates, or what might be available in privately paying work, hardly a Golden Goose). One could be forgiven for thinking, sometimes, that we are regarded (dispiritingly and wholly unjustifiably) as being ‘on the make’, and our honest, professional judgements on case management issues are routinely discarded (frequently with inevitable consequences: cases running over, the necessity of this or that expert becoming suddenly obvious in the course of a trial, the absence of this or that lay witness suddenly becoming a problem. ‘We told you so’ has become the silent refrain of the advocates all too often). The inevitably increased time-estimates for cases where there is to be more limited intermediary involvement is hardly likely to decrease that conflict. Make no mistake, that conflict is corrosive in a jurisdiction where collaboration, at all levels, is essential. We work better when we work together. I cannot, for myself, think of a time in my near 30 year career when that has seemed more difficult to achieve. The relationship between the Court’s objectives and the advocate’s absolute duty to represent their client to the best of their ability was, historically, truly symbiotic and sympathetic. It is less so now than I can ever remember; there is an increasing tension which, in my view, serves neither ‘the system’ nor the children and families caught in it.
The third is that, if practitioners are to take more responsibility for vulnerable clients, then cases will have to be listed, more frequently, for their convenience. Increasingly, and whilst the importance of judicial continuity is stressed, the importance of continuity of representation is undervalued or even openly ignored. Where an advocate has an established relationship with a vulnerable party then, particularly in the absence of an intermediary, continuity of representation is important as a matter of fairness, as well as good practice.
The fourth elephant in the room is the assumption being made about the capacity (not ‘ability’) of the lawyers, especially in the pre-trial preparation phases, to deliver advice in a suitably tailored way. The absence of intermediary assistance will undoubtedly mean an increased number of longer appointments to ensure the vulnerable party’s effective participation. Fewer intermediaries at the pre-trial stage will increase the already unsustainable pressures on us, the practitioners at the coal-face. The idea that this complaint is from a practitioner supporting the use of intermediaries somehow in order to make the process ‘easier’ for himself (per Lieven, J. in the Northamptonshire case, at 47: ‘It may often be the case that all the parties support the appointment, because it will make the hearing easier….’) is, with respect, fundamentally to misunderstand and/or disregard the realities of actually representing a vulnerable party in a public law children’s case, as opposed to ‘sitting in judgement’, which is worlds apart from what we all do, and engages wholly different skills. Moreover, the fact is that the LAA has strict rules about remuneration for conferences and consultations. If the absence of an intermediary at the pre-trial stages means a ‘more than average’ number of conferences and consultations (and almost inevitably it will) then the work will not be remunerated. At a time when, despite their dedication and commitment, some practitioners’ ‘good-will’ is already stretched well beyond acceptable limits and compromises their well-being, it cannot be assumed, still less expected that they are prepared to work for free any more than they already do.
Fifthly, there is a real risk that, in some cases, where intermediary assistance (to a greater or lesser extent) is sought and refused, advocates might feel themselves professionally compromised. It is not difficult to imagine a scenario in which an advocate (and their team) takes the view that, without the assistance of a specialist intermediary, or at least a specialist assessment, they cannot discharge their responsibilities towards the client. That judgement is for the advocate and the advocate alone.
Finally: as a matter of law, it is arguable that the Article 6 ‘right’ extends not only to the judicial part of the process but demands effective participation during the pre-judicial phases (see Mantovanelli v France [1997] 24 EHRR 370). There must be a risk that the question of the extent of any intermediary involvement (particularly where the Guidance indicates that it should be permitted in the ‘very rarest’ of cases, in the pre-judicial phase) might engage these principles and lead to increased ‘satellite’ litigation.
All things relate to one another, and the inner workings of the Family Justice System are no exception. Quite how the Guidance will affect our day-to-day roles depends upon individual decisions in individual cases. Just as there is a bewildering and inexplicable array of ‘local’ approaches towards, for example, the drafting of Orders, the listing of cases, the format of Position Statements, attitudes towards time-estimates, attitudes towards the appointment/cross-examination of experts, what is expected of parties at this or that interlocutory hearing, and on and on, there will doubtless be a bewildering array of differing approaches to the appointment of intermediaries. I have no doubt that whilst a client might enjoy the assistance of an intermediary in one Court centre, the same client might not in another, for no particularly principled reason. I expect to receive various ‘local’ guidance documents about the issue, which will sit in my Inbox, unopened, until a particular case comes along in a particular Court centre, and I will not regret having left them unread and ignored. Fundamentally, it is not difficult to see how decisions about intermediaries in individual cases might cause tensions in other areas of case management, not just in individual cases in individual Courts, but also more widely. Like in a game of ‘whack a mole’, solving one problem simply creates another.
It is of course right that scarce and precious resources are accurately and appropriately targeted and none of us would argue with that. But it often seems we are ‘robbing Peter to pay Paul’. That would not matter at all, except that too often it represents a threat, albeit inadvertent, to the thing we all care about most of all: the fair and effective representation of our clients.
There are many other areas of the Family Justice System (and HMCTS) which we all know involve huge wastes of resources (the inordinate amount of Court time permitted for some private law and financial relief cases, for example, some of which automatically attract the highest tier of judicial oversight despite their fundamental simplicity; repeated and enormously costly competitions for part time judges who, after their appointment, struggle to complete their annual sitting quotas or are paid last minute cancellation fees through lack of work; fees paid to management consultants to ‘scope’ the impact upon the Family Justice System of flawed, ‘chocolate teapot’ schemes like SIHIS, which could have been avoided in the first place or even devised in a more effective way, had practitioners actually dealing with these cases been consulted more widely and/or trusted with their views).
And we can all think of ways that ‘the system’ could help to pay for itself. We could charge means tested Court fees in privately funded cases, or link them to the assets in money cases. How is it remotely tenable, in 2025, that a Local Authority must pay nearly £2,500 of taxpayers’ money to issue, pursuant to its statutory duty, proceedings for a child’s protection, when a millionaire, who chooses to litigate, pays a few hundred pounds and the issue is contact, or where the matrimonial ‘pot’ runs into millions? How is it right that a high net worth individual, irrespective of the importance of issue they want to litigate or the extent to which they have tried to avoid litigation, can cost the taxpayer tens of thousands a day occupying a Judge and a courtroom, without having to pay more than a few hundred pounds into the system itself? If the enormous fees generated in these cases are not enough to encourage early settlement, perhaps it is time to deter the litigation by charging for the service the Court itself provides.
Some might even say that the whole legal services industry owes a responsibility to its own publicly funded system. Is it right, in the current climate, that billion-pound profit law firms, which elect not to undertake any publicly funded work, make no direct contribution towards the public fund? Or should they, as part of the whole system (and, for the avoidance of doubt, I would include the privately funded Bar in this), be obliged either to engage in publicly funded work (in addition to running clinics and taking death row cases for free elsewhere) or to make a direct financial contribution towards it, through an annual levy?
Perhaps some of these questions are too ‘radical’ for comfort, but radical change is never ‘easy’. And perhaps it is better to pursue these sorts of radical ideas than repeatedly to target the areas that are already perilously fragile, are already cut to the bone, and which involve permanent, irreversible decisions for the most vulnerable children and families in our society.
John Vater KC
2025
