For some people Court is a very stressful and daunting place, particularly if they are vulnerable in terms of mental health issues or learning disabilities.
What is an intermediary?
An intermediary works within the Justice system with vulnerable victims, witnesses defendants and parties to proceedings. They specialise in communication skills and are likely to have a background in psychology, speech and language therapy, teaching, social work and mental health. The purpose of an intermediary is to enable two-way communication to take place between professionals and vulnerable individuals. They provide support to people who have learning disabilities or mental health issues. The support of an intermediary enables them to fully engage in the Court process. The intermediary will also assist a person to understand the written materials and follow what is happening within the Court. They will also support them to give evidence, if required. Therefore, an intermediary’s role is a very important one as they can make a significant difference in terms of the vulnerable person’s participation within the Court proceedings.
How can I get an intermediary to assist me at Court?
A recommendation may be made by a psychologist after a cognitive assessment has been carried out with the individual to ascertain their cognitive functioning and whether they would have difficulties instructing a solicitor and understanding the Court process. If the person has capacity to instruct a solicitor, the instructed solicitor can apply to the Court for permission for an assessment to be completed by an intermediary to find out if the individual would benefit from an intermediary, once a qualified intermediary has been identified. Alternatively, a solicitor can apply directly to the Court for an intermediary assessment if they believe that the use of an intermediary would be a significant benefit to the individual who has the following, learning disability, mental health issues and is therefore vulnerable.
Once the Court has considered that a person may benefit from the assistance of an intermediary, the next step is for an assessment to be carried out with them. The purpose of the assessment is to establish the person’s level of understanding regarding questioning, how they communicate their answers and any other issues they have that would make giving evidence difficult for them.
The intermediary will use a range of tools within the assessment, such as, pictures and objects. They will engage the person in discussion and structure it to establish how they cope with various kinds of questions to ascertain what works best for them within the courtroom setting. Depending on the complexity of the assessment, it may take more than one session with the individual to complete the assessment. The outcome of the assessment will assist the professionals involved on how best to deliver information and question them in order that the issues can be addressed. The intermediary will also provide practical advice such as how to pose questions, whether there should be breaks during the Court hearing and whether a visit to the Court is required before the hearing takes place.
What happens after the assessment?
If a Court hearing is scheduled, the intermediary can attend Court with the assessed individual for a pre-trial visit. This will assist them to become familiar with the Courtroom layout. Prior to the Court hearing, the intermediary will meet with the Judge, Counsel and the Solicitors to discuss the recommendations within the intermediary’s assessment. When the individual who has been assessed gives evidence before the Court, the intermediary will be beside them to support, monitor their understanding and if required and advise the Court when they may require a short break. The intermediary can also advise on the complexity of the case, speed of the questioning and the psychological state of the person being questioned. Intermediaries may attend appointments with clients and their solicitor and Barristers to make sure that they understand Court documents and are able to properly communicate their instructions to their legal team.
Intermediaries are impartial servants of the Court. Their role is to assist the individual whom they have previously assessed. They do not take sides with any other parties within the Court proceedings.
Who pays for a Court intermediary?
There is no statutory requirement for HMCTS to fund an intermediary or intermediary assessment in family proceedings. However, where it appears to the Court that this 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
- an assessment to determine the nature of support that should be provided through an intermediary in the courtroom, and
- (ii) funding for that intermediary. HMCTS may then provide the funding if there is no other available source of funding.
Intermediaries are usually appointed to support vulnerable witnesses or parties to participate in or understand proceedings inside the courtroom. HMCTS can also if necessary fund the cost of an intermediary to assist with preparation work outside the Court but only if this is directly relevant to matters to be dealt with in the court room and there is a judicial order to this effect. HMCTS is not able to fund the general provision of intermediaries outside the court room.
(The above abstract taken from ‘Internal staff guidance from the Ministry of Justice- 18/02/2018’) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/681275/guidance-courts-on-payment-certain-mmeasures-family-proceedings.pdf
Prior to the guidance from the Ministry of Justice, it was extremely difficult to establish who was responsible for funding the instruction of an intermediary. There was much debate as to who was responsible. The Court looked to the Legal Aid Agency to provide funding for assessments and use of intermediaries, but their argument was that if the Court’s was prepared to fund interpreters, they should agree to include intermediaries as this service is also was in relation to effective communication at Court on behalf of the client. Fortunately, the Court has now taken responsibility for funding assessments and provision of intermediaries to assist vulnerable clients in the family Court to ensure their position is communicated effectively and that they understand the Court process.
At Emery Johnson Astills Solicitors, we have a dedicated family and care team. If you have any further questions and require legal advice, please contact the office on 0116 255 4855 (Leicester) or 01509 610 312 (Loughborough).