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The judge erred by overlaying the necessity test with concepts of rarity and failing to properly consider the mother's vulnerabilities and the evidence, resulting in procedural unfairness. The necessity test under Part 3A FPR required intermediary assistance for the mother to ensure a fair hearing.
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M (A Child: Intermediaries) [2025] EWCA Civ 440 (10 April 2025)
Court of Appeal allowed a mother’s appeal against refusal of an intermediary in care proceedings, holding that necessity—not rarity—governs appointment.
Exceptional circumstances justifying a general stay of proceedings under Part II of the Children Act 1989 are not established. Participation directions can be implemented to mitigate the mother's vulnerabilities. The child's interests are not adequately represented by the adult parties, warranting joinder and appointment of a Guardian. Consideration of s.37 order and interim contact is deferred pending the child's legal representation.
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Disclosure of the fact-finding judgment to the Father's employer (MOD) is refused because comprehensive disclosure has already been made to the police, who are bound by statutory and common law safeguarding duties and protocols with the military; there is no evidence that the Father's employment brings him into contact with vulnerable persons, and further disclosure is unnecessary and disproportionate. The court is entitled to assume that regulatory and investigatory bodies follow law and procedure. No further psychiatric expert evidence is ordered as the Mother refuses assessment; the court…
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The application for an intermediary assessment was not supported by sufficient evidence of necessity. The correct procedure was not followed, and there was no clear evidential basis demonstrating that the Mother could not participate fairly without an intermediary. The application was therefore adjourned to allow for further evidence to be provided if necessary.
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N v D [2024] EWFC 309 (30 October 2024)
The Family Court refused a mother's application to stay proceedings on a father's parental responsibility and contact claims, joined the child as a party, and adjourned a s.37 issue.
The appeal was refused because the application was made over 16 months out of time without good reason, and the substantive grounds (lack of capacity and absence of participatory directions) either should have been raised on appeal or did not amount to a breach of natural justice affecting the outcome. There was no evidence the appellant lacked capacity at the relevant hearing, and the absence of special measures did not render the proceedings unfair given the context and issues in the case.
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The evidence, including expert psychological assessments, did not establish that the mother’s cognitive or communication difficulties were so significant as to require an intermediary. Her legal team, using appropriate adaptations and guidance, could ensure her fair participation. An intermediary was not necessary.
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The court was not obliged to make participation directions or special measures for the mother at the 12 April 2024 hearing because the fact of her being a victim of domestic abuse by the father was not stated at that time, and her legal team did not apply for such directions. The mother was legally represented and actively participated in the hearing. The court found no evidence that her ability to participate was diminished such as to render the hearing unfair. The obligation to consider participation directions arose only after the fact was stated in subsequent correspondence.
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A, Re (A Child: Appeal: Case Management Decision: Identity of Expert) [2024] EWHC 1669 (Fam) (28 June 2024)
The High Court allowed a mother's appeal against case-management decisions, faulting the lack of participation directions and the handling of her objection to a male psychologist.
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