The 2025 Court of Appeal judgment in Re M (A Child) (Intermediaries) has brought vital clarity to a procedural question that has generated uncertainty for years: when should intermediaries be appointed in family proceedings?
Historically, while intermediaries have long been used in criminal trials to facilitate fair participation for vulnerable individuals, the family courts have wrestled with inconsistent application of the same principles. With this judgment, the Court of Appeal has decisively restated the correct legal test, confirming that intermediary support must be provided where necessary to secure a fair hearing—nothing more, and crucially, nothing less.
Understanding intermediaries in the family court context
An intermediary serves a vital function: they assist individuals who have communication difficulties in understanding and taking part in court proceedings. Their role is not to provide evidence or advocacy, but rather to ensure the person can engage meaningfully with the process. In family proceedings, this may involve helping a parent with learning disabilities understand court directions or aiding in the accurate transmission of questions and answers during evidence.
The role is rooted in the Family Procedure Rules 2010 (FPR), specifically Part 3A and its associated Practice Direction 3AA, which requires courts to consider the needs of vulnerable individuals. Where appropriate, the court must make participation directions, including the appointment of an intermediary.
Despite this framework, case law has revealed some ambiguity. Judges have sometimes hesitated to appoint intermediaries, viewing them as exceptional or rare, especially during fact-finding or final hearings. This caution, often inspired by earlier criminal law authority, has led to misapplication of the test for intermediary use in family proceedings.
The facts and procedural history of Re M
The case at the centre of this significant development concerned a mother involved in care proceedings relating to her young child following an unexplained skull fracture. The mother had clear and evidenced cognitive impairments, and had already received intermediary assistance during earlier hearings. However, at the fact-finding stage, a crucial moment in the proceedings where determinations of fact would directly affect parental rights, the judge declined to order continued intermediary support.
This refusal was not based on new medical or psychological evidence, nor on a change in the mother’s condition, but on a judicial view that the use of an intermediary at a full hearing was not “necessary” because the case was not “exceptional.”
This reasoning prompted an appeal.
The Court of Appeal’s clarification: Necessity, not rarity
In a pivotal judgment, the Court of Appeal overturned the lower court’s decision. The central message was clear: the test is necessity, not exceptionality.
Lord Justice Jackson, giving the lead judgment, criticised the lower court’s approach of conflating the necessity test with rarity or frequency. He confirmed that the proper question under Part 3A is a binary one: is the appointment of an intermediary necessary to ensure a fair trial for a vulnerable party or witness? If yes, the court must order it.
The Court rejected the idea that intermediary appointments in family proceedings should be viewed as rare or extraordinary. Instead, the availability of intermediary assistance must be governed solely by the evidence, particularly intermediary reports and cognitive assessments, demonstrating whether the person in question can otherwise effectively engage in the hearing.
The implication is profound: judicial discretion remains, but must be anchored to necessity rather than preconceived notions of frequency or administrative convenience.
The role of intermediary reports in determining fairness
At the heart of any application for an intermediary lies expert evidence. Intermediary reports offer tailored assessments of a party’s communicative strengths and limitations, and their capacity to understand and participate in court.
In Re M, the mother’s intermediary report identified significant difficulties, including processing delays and comprehension deficits. The report recommended intermediary support during all court sessions, including conferences with legal representatives and the fact-finding hearing itself.
The lower court’s failure to engage meaningfully with this report represented a critical procedural flaw. As the Court of Appeal explained, a blanket reference to rarity cannot displace properly presented evidence of need.
The legal test for intermediaries: A return to simplicity
The judgment in Re M has been praised for restoring clarity to the legal test applicable to intermediary appointments in family law.
This does not require the court to weigh how “exceptional” the circumstances are, nor to consider how frequently intermediaries are appointed in other cases. Rather, the test is person-centred and fact-specific.
In addition, where an intermediary is necessary, their support must extend to all elements of the process where participation is essential, including legal consultations and case management hearings, not just courtroom testimony.
Implications for the pre‑proceedings stage
An often-overlooked issue is the role of vulnerability and intermediary support in pre‑proceedings. Local authorities and legal representatives are under a duty to identify potential communication issues from the earliest stages.
In care proceedings, where parents are invited to pre‑proceedings meetings under the Public Law Outline (PLO), failure to provide appropriate support can fundamentally undermine the fairness of the process. Vulnerable parents may misunderstand their rights or the consequences of decisions made in these meetings.
The judgment in Re M reinforces the need for early assessment and proactive measures. If intermediary assistance is necessary during a court hearing, it is likely just as necessary during the pre-proceedings phase. Legal representatives must take care not to delay assessments until proceedings are well underway.
The Court of Appeal’s ruling sends a clear message to all involved in family proceedings: procedural fairness must take priority over assumptions or administrative hesitancy. When dealing with vulnerable individuals, the court’s duty is to ensure they are placed in the best possible position to understand, respond to, and influence the outcome of their case.
This requires:
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Timely intermediary reports
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Proper engagement with cognitive assessments
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Tailored participation directions under FPR Part 3A
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Avoidance of judicial assumptions about rarity or resource implications
Judicial decisions must be detailed and transparent. Where intermediary support is refused, there must be clear reasoning, tied directly to the evidence.
This case reasserts the core values of the family justice system: inclusion, fairness, and clarity and not only re-centres the focus on vulnerable court users but also empowers practitioners to advocate confidently for support measures where required.
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