Within care proceedings under Part IV of the Children Act 1989 a child had been placed with foster carers under an interim care order. The five-day final hearing was adjourned when the deaf intermediary appointed to assist the mother, who as well as being profoundly deaf struggled with communication and complex language generally, failed to attend. The matter was listed before a senior family judge to determine whether a wasted costs order ought to be made against the intermediary and whether the order appointing a deaf intermediary for the mother ought to be varied.
On the preliminary issues—
Held, no wasted costs order made and order for intermediary not varied. Although the position in respect of the appointment, qualification and duties of intermediaries in the family justice system was not clearly set out either in the Family Procedure Rules 2010, or in any practice direction, the Criminal Practice Directions gave detailed consideration to the issue and was referred to extensively in the established criminal authorities. While there were obvious and important differences between Family Court cases and those involving criminal charges the reasons for the appointment of intermediaries, and their function in assisting those with communication difficulties facing important litigation, were essentially the same. Intermediaries were appointed, whether in criminal or family cases, to ensure that the individual in question could participate in the proceedings so that their fair trial rights were protected. Therefore, the guidance in the established criminal authorities was applicable to the consideration of the same issues in the family justice system, albeit the court was required to have close regard to the nature of the case and the evidence that the individual needed to engage with. Applying that guidance to the present case, where, inter alia, (i) the mother’s communication issues were profound, both because of her deafness but also because of the wider communication difficulties highlighted by the expert, and (ii) there was a particular problem with the use of a hearing intermediary for a person who was deaf, given the very specific interpretation issues involved with British Sign Language, the appointment of a deaf intermediary for the mother was necessary for the entirety of the hearing and the order for the appointment of an intermediary was not to be varied. Finally, upon hearing of the reasons behind the intermediary’s failure to attend the final hearing no costs order was to be made (paras 2, 35–36, 41–43, 48).
Summary of principles relevant to the appointment of and approach towards an intermediary in the family justice system (paras 44–47).
Samantha Dunn (instructed by Northamptonshire Children's Trust) for the local authority.
Rob Pettitt (instructed by Duncan Lewis Solicitors) for the mother.
Clare Meredith (instructed by Dodds Solicitors LLP, Leicester) for the father.
Ben Harling, solicitor (of HLA Family Law, Northampton) for the child, by the children's guardian.