A family judge was wrong in refusing to appoint an intermediary for a vulnerable mother who faces having her baby taken away from her, the Court of Appeal has ruled. The case highlights the challenges for people with learning difficulties participating in remote hearings.
S (Vulnerable Parent: Intermediary) concerns a mother opposing a local authority’s care plan for her baby. A ‘hybrid’ hearing will take place next month. The mother and her representatives will attend court. Some or all of the advocates will appear remotely.
The mother has a learning disability. A psychological assessment recommended that questions to her should be kept brief and using her vocabulary. Leading and abstract questions should be avoided.
The mother’s solicitors applied for an intermediary to be appointed but the application was refused. The family court judge was satisfied that the mother was a vulnerable party but said she was represented, had no capacity issues and was able to give instructions. However, the judge made participation directions recommended by the psychologist.
Lord Justice Jackson, in the Court of Appeal, said next month’s hybrid hearing would involve complex information being considered through more than one medium of communication.
‘Professionals who are having to adapt to these demands have the advantage of repeated exposure to a range of possible formats. Lay parties do not generally have that advantage, but it is to their needs that the court must adapt. Where a party or a witness has a learning disability, the adaptation needs to be sufficient to ensure that they are genuinely able to participate in the hearing, both in and out of the witness box,’ he said.
‘A particular issue may arise where a witness with a learning disability is being questioned by an advocate who is not physically present. Even assuming that the technology works in an optimal way, the process removes many of the visual cues that are so valuable to individuals with a cognitive impairment… Being questioned by someone whose face appears on a screen is not the same as face-to-face conversation and the demands of following a hearing in more than one medium inevitably adds to any existing difficulties in understanding what is being said.’
Jackson LJ said the family judge fell into error. ‘It was, I think, necessary to step back from the detail of the rules and look carefully at the likely experience of this vulnerable parent, attending a hearing in what is for her a complex format with the prospect of the removal of her baby hanging over her. An intermediary can help her to negotiate the process of being questioned remotely and to participate in the hearing to the fullest possible extent. This is support with communication, and not just emotional support, but if it also gives emotional support, all well and good.’
Jackson LJ ordered an intermediary to be appointed. However, he stressed that his decision did not imply that an intermediary would be required in all similar cases.