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Court of Appeal allows appeal over refusal of application for intermediary assessment

The Court of Appeal has allowed an appeal from a case management decision in care proceedings refusing an application by a parent with a learning disability for an intermediary assessment and the appointment of an intermediary.

In S (Vulnerable Parent: Intermediary) [2020] EWCA Civ 763 Lord Justice Peter Jackson said the case particularly concerned the position of vulnerable individuals taking part in remote or semi-remote ('hybrid') hearings.

The background is that the appellant mother, who is in her 30s, has three children. Two of them are in long term foster care. The third, T, was born in November 2019 and is the subject of the proceedings.

T has lived with her mother since birth in a mother and baby foster placement under an interim care order.

Following assessments, the local authority's care plan is for separation and adoption.

The mother opposes this and wishes to care for her daughter in the community with support from professionals and her family and friends.

The final hearing will take place between 6 and 8 July before Her Honour Judge Caroline Wright, who has had conduct of the proceedings throughout.

There will be a further case management hearing on 25 June to settle the practical arrangements for the hearing.

Lord Justice Peter Jackson said the papers in the local authority’s application run to more than 500 pages. The witnesses are to include T’s social worker, an independent social worker and perhaps a psychologist who assessed the mother in January.

Their recommendations, reflected in a professionals’ meeting on 30 April, do not support T remaining in her mother’s care. The Guardian’s final report is awaited but she is likely to concur with the professional consensus, the judge said.

The mother has a learning disability. Her capacity to develop her parenting skills and to provide good enough care for T is a central issue in the case. She has also historically experienced depression.

There have been two psychological assessments of the mother. These led to her lawyers considering that their client might require the support of an intermediary.

An assessment report was expected to cost £640 and be available in two weeks. The cost of an intermediary attending the remaining hearings was said to be in the region of £2,500.

HHJ Wright’s order contemplates a hybrid final hearing, with the mother and her representatives attending court, other evidence being given remotely and with some or all of the other advocates appearing remotely.

The detailed arrangements remained to be settled at a pre-trial review on 25 June.

The judge’s decision to refuse an intermediary was given in what Peter Jackson LJ described as a careful extempore judgment.

HHJ Wright concluded that “in all the circumstances” an intermediary assessment was “not necessary or proportionate”. She did, however, make the participation directions as recommended by one of the psychologists.

Counsel for the mother advanced the appeal on three grounds:

(1) The court failed to apply the correct test by confusing the status of a vulnerable party with that of a protected party.

(2) The court impermissibly disregarded the opinion of Dr Hale [the pyschologist who conducted a full assessment of the mother].

(3) The judge's evaluative process was wrong and she reached a decision that was not open to her.

Lord Justice Peter Jackson said he did not accept the first ground, and concluded that the second ground of appeal did not add much to the third and main ground.

The Court of Appeal judge said the real complaint in the case was that the judge’s reasons for refusing the application were insufficient.

“It is central to my consideration of this appeal that there is to be a hybrid hearing in this case,” Peter Jackson LJ said.

“The hearing will involve quite 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 effectively in the hearing, both in and out of the witness box.”

The Court of Appeal judge 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.”

Lord Justice Peter Jackson noted that on 22 April 2020, the Equality and Human Rights Commission published an interim report into video hearings in the criminal justice system and their impact on effective participation by defendants who have a cognitive impairment or a mental illness.

In the report the EHRC found that “video hearings can significantly impede communication and understanding for disabled people with certain impairments, such as a learning disability, autism spectrum disorders and mental health conditions."

One of the report's recommendations to government was to consider the use of registered intermediaries to provide remote communications support to such defendants in video hearings.

The Court of Appeal judge said: “There is of course no direct read-across between a defendant in prison and a party or witness attending court as part of a hybrid hearing. I mention the EHRC interim report only to underpin the fact that the use of remote technology has additional implications for parties and witnesses with a learning disability.

“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.”

The Court of Appeal said that in the present case, the mother was someone who was rightly recognised by the court to be vulnerable. “She shares a number of characteristics of the subjects of the EHRC report. The judge's conclusion that participation measures did not require the involvement of an intermediary is one that might or might not have been sustainable ahead of a conventional face-to-face hearing, but I do not consider that she sufficiently addressed the additional factors to which a hybrid hearing will give rise.”

The judge’s decision did not take any account of this factor and on that basis Lord Justice Peter Jackson considered that she had fallen 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,” he said.

“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.”

Lord Justice Peter Jackson continued: “We are unfortunately disagreeing with a careful and conscientious case management decision, but it seems to me that the difficulty arose because the application for the intermediary was not considered in the context of the arrangements for the hearing, which are not to be finally settled until 25 June.

“By refusing the application for an intermediary assessment, the judge deprived herself of the advice of the intermediary about any issues that may need to be addressed. She might have deferred a decision about the intermediary's attendance at the trial until she had seen the assessment, but she was I think wrong to have refused to allow the assessment in the light of all the circumstances, including the advice of Dr Hale. I would therefore set aside her decision.”

Lord Justice Peter Jackson said that as to what order the Court of Appeal should make, the priority must be to ensure that the upcoming hearing is effective and fair.

“I am satisfied that the criteria for the appointment of an intermediary are met and, as time does not allow for the process to be taken in stages, would make an order in the following terms:

"The registered intermediary, [as named], shall:

1. Interview the Appellant and provide an assessment report in relation to her need for an intermediary no later than 4 pm on 24 June 2020;

2. Participate remotely in the hearing on 25 June 2020 to speak to her recommendations;

3. (Subject to any different order made at the hearing on 25 June) attend the final hearing on 6-8 July 2020 in person in order to assist the Appellant to participate in the proceedings and give her evidence."

Lord Justice Peter Jackson emphasised that the outcome of this appeal did not imply that all parties or witnesses with a similar profile to this mother would require an intermediary, or that intermediaries were likely to be required in all cases where a parent with a learning difficulty might be taking part in a remote or hybrid hearing.

“All decisions of this kind are case-specific, and must be reached by applying the rules and guidance to the actual circumstances of the individual case,” he said.

Lord Justice Males agreed.

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