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Why vulnerable clients need Intermediaries in care proceedings

What is an Intermediary?

Intermediaries are individuals or organisations that are relied upon in circumstances where it is believed that their involvement would increase the quality of evidence provided by vulnerable clients as conveyed by Section 19 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999.  They are there to provide communication guidance and to ensure that there are no miscommunications.

The use of this communication specialist is a familiar concept in Criminal proceedings; however, this idea took some time to be accepted into the Family law jurisdiction. However, in recent years there has been a significant amount of reliance and acceptance for the work that intermediaries do as highlighted in the recent case of S (Vulnerable Party: Fairness of proceedings) [2022] EWCA Civ 8 ( 18 January 2022).

When is an intermediary used in Family Law?

Care proceedings is where the local authority is involved with a family out of interest of protecting the child, this primarily concerns Family law.

This brings forward the question, what role does the intermediary possess in family law?

To put it simply, intermediaries have similar responsibilities in both family and criminal law. The primary aim being that the proceedings are understood by the individual in question.

What is the role of the intermediary?

The role of the intermediary can be explained using the early criminal case of R v H [2003] EWCA Crim 1208, which echoes Section 16 YJCEA 1999. In this case, appellant had an IQ of 51 and due to this the assistance of an intermediary was recommended. The use of an intermediary was recommended as the appellants lack of capacity may have affected the fairness of the proceedings, as they may not have been able to effectively understand what was occurring, thus resulting in the quality of evidence being affected. This therefore demonstrates that the use of an intermediary is in the interest of protecting Article 6 ECHR, the right to a fair trial. As although the appellant may be physically present, if they are unable to understand the contents that are being discussed, this can be concluded to be a violation of the right to a fair hearing as they would not be able to effectively participate in the proceedings.

Another example that is detailed to impact effective participation, is a client’s age. Individuals under the age of 18 may be eligible for an intermediary to ensure their effective participation. This idea was further conveyed by the European Court of Human Rights (ECtHR) in SC v the United Kingdom 2005 40 EHRR 10. In this case, the applicant was 11 years old and had learning difficulties. Both factors would have affected the applicant’s effective participation in the trial. This is primarily because a trial is usually conducted under the impression that the relevant parties can understand and be involved in the proceedings. In this case, this was not possible as the applicants age and learning difficulties would have limited the extent to which they were able to digest the proceedings occurring.

Ultimately, this indicates that an intermediary’s primary function is to ensure that any potential obstacles that an individual may experience, because of factors out of their control such as age or learning difficulties, are important to consider when questions are being asked as per Re T (Children) [2020] EWCA Civ 507.

Why use intermediaries in Care Proceedings

The primary aim of an intermediary is to encourage effective participation. Their role in family work is slightly different than their role in criminal work mainly due to the length of the cases. This suggests that there a few things to consider when relying on the use of intermediaries in care proceedings.

  1. Establishing a good rapport

in family courts, much like in criminal courts, establishing a good rapport with the vulnerable person is essential as without doing this the vulnerable individual may be more resistant to fully participating, all because they do not feel at ease working with you.

  1. Help understand the individual

Secondly, much like in criminal law, intermediaries have the responsibility of assessing the vulnerable individual to understand what method of working adapts to their individual person. The same formula is not always applicable to every individual.

In addition to this, it is imperative to ensure the continuity of intermediaries as it may be the only area that vulnerable individuals do not experience constant change. A vulnerable person may experience frequent changes in counsel and social workers and so having continuity in some aspect of their life is important.

  1. Helps build a good relationship

Furthermore, though having a good relationship with the vulnerable individual is important, it is equally as important to demonstrate a good relationship with other professionals that are involved in the case. This is to convey to the vulnerable individual that they are in safe space and that they can confidently confide in us.

This demonstrates that intermediaries do have a significant role in care proceedings. This is because they are responsible for building the trust of the vulnerable person so that they are effectively able to participate in trials as per R v Cokesix Lubemba , R v JP [2014].

Organisations that can help – Triangle

Triangle is an independent organisation that provides support primarily for children and young people, however they can extend their services to individuals up until the age of 30. Their purpose is to provide support in with these vulnerable individuals in communicating matters in legal proceedings.

They have lots of experience working with incredibly young children. They specialise working with children that may have been traumatised and young people with learning disabilities. Due to their participation in proceedings, they are neutral and prioritise no party, their role is to help with communication so that there are as few errors as possible.