An intermediary can refer to a third party who is involved in assisting parties to a family law dispute in reaching an agreement. The role of an intermediary can vary depending on the specific circumstances of the case, but generally, they serve as a neutral and impartial facilitator who helps parties communicate and negotiate effectively.
The primary aim of an intermediary is to encourage effective participation. This involves:
- Establishing a good rapport
- Help understand the individual
Although the intermediate process for family and criminal work is considerably different, every case begins with an evaluation of the young person’s communication requirements and skills. This assessment looks at how someone receives and expresses information. It also considers how we might need to help them control their emotions in court.
In Re X (A Child) Theis J noted the absence of an intermediary scheme in family cases led to ‘real obstacles’. Penny Cooper, barrister and academic had noted the FGC Guidelines encouraged practitioners to consider the use of intermediaries at the earliest opportunity.
Who would qualify for one?
There are two types of intermediaries, those trained by the Ministry of Justice (Registered Intermediaries), and independently trained intermediaries (soon to be called Court Appointed Intermediaries) who work with parents and children in family proceedings. One common example of an intermediary is a mediator. A mediator is a trained professional who works with both parties to help them resolve their disputes outside of court. Mediators can assist parties in a variety of ways, such as helping them communicate effectively, identifying areas of agreement and disagreement, exploring options for resolution, and drafting a settlement agreement.
How do they help the court process?
The importance of the role of the intermediary in ensuring proceedings are fair was considered again in the very recent case of S (Vulnerable Party: Fairness of proceedings 2022). In this case, the failure to appoint an intermediary to assist a vulnerable party led to the appeal being granted and the case being remitted for a possible re hearing before the liaison High Court Judge.
What do they do in practice?
If the Intermediary is working with a child as a witness in family proceedings, they would carry out the communication assessment and make recommendations as usual. If they have done an Achieving Best Evidence (ABE) interview there is the option for them to be cross examined with pre-agreed questions in a recorded interview. They may also make recommendations for how and where they watch their ABE interview, and whether they meet the Judge and advocates prior to cross examination.
If their assessment findings indicate that the young person would benefit from something to assist with their communication and to help them to get through the experience of being in court, they can make recommendations about it.
While there is no statutory requirement for HM Courts and Tribunals Service (HMCTS) to fund an intermediary or intermediary assessment in family proceedings, it can make certain orders and provide the funding if there is no other available source of funding. Where it appears to the court that funding by HMCTS is the only way a party or witness can properly participate in proceedings, or be questioned in court, the Judge may order that there should be i) an assessment to determine the nature of support that should be provided through an intermediary in the courtroom ii) funding for that intermediary.
Ground Rules Hearing
Where an intermediary is used, there must be a preliminary Ground Rules Hearing to set out the parameters for the fair treatment of vulnerable witnesses in clear terms to enable techniques or measures to be employed to assist the witness to give his evidence to the best of his ability and to ensure that the witness’s support needs are identified and addressed in advance of any final hearing (Re M (a child) ).
In some cases, a Judge may appoint an intermediary, such as a parenting coordinator or a guardian, to help resolve disputes related to child custody or parenting time. Despite their suggestions, the Judge ultimately decides whether or not to appoint an intermediate.
Ann Thompson / Elena Panayi
Consultant / Paralegal