A Local Authority v Mother & Ors [2021] EWHC 2794 (Fam)

Background:

    • The matter came before Mrs Justice Lieven on a costs application, brought by the local authority and children’s guardian, against two intermediaries referred to as DM and MH. For the purposes of this application they were each intervened into the proceedings.
    • The father was a respondent to public law proceedings. DM was originally appointed as the father’s intermediary and MH acted in that capacity for 2 days of what was supposed to be the final hearing.
    • Lieven J comments, The facts of this case are, I hope, very unusual, but there are some important lessons to be learnt about the appointment and conduct of intermediaries. I am very concerned that these issues do not arise again and that lessons are learnt from what happened in this case.’
    • Assessments were undertaken of the father with the net result of the court sanctioning the instruction of an intermediary to assist him. DM was approached. DM ran an organisations which provide consultant services to in relation to care homes and private clinics. He was not a registered intermediary with the Ministry of Justice [‘MoJ’] Criminal Court Scheme.
  • DM accepted formal instructions knowing the final hearing dates but close to the start of that trial (2 days before) DM emailed to say that it was unlikely he would be released from his pre-existing and on-going hearing.
  • DM, in attempting to find a solution, emailed to say ‘I have asked MH to stand if for me.’ DM turned up. DM was not asked to make any Intermediary Declaration as set out in the MoJ guidance document.
  • Written questions for the father had been prepared in advance and agreed at a ground rules hearing as part of the Issues Resolution Hearing (‘IRH’).
  • The mother gave evidence and as a result questions to be put to the father, by the local authority, were to be revised and considered by MH.
  • MH stated that she had not seen the original questions and it became clear she was not familiar with the relevant Advocates Toolkit. Further, MH had not read the cognitive assessment or intermediary assessment of the father.
  • It transpired that MH was a friend of DM and her experience as an intermediary spanned 2 weeks.
  • The father then reported that he had not understood parts of the evidence and had not been assisted by MH at times.
  • An application was made to abandon the final hearing and relist for a fresh fixture. This was opposed by the local authority and children’s guardian. The Judge acceded to the application and stated,

“On 21.07.2021 Counsel for the Local Authority and Counsel for the children requested that [the Father’s] intermediary, [MH], consider a list of revised written questions to be put to [the Father]. Following this request, and during discussions with [the Father’s] Counsel, it transpired that [MH] is not an intermediary. It further transpired that [MH] had no understanding of the role of an intermediary, had not read the cognitive assessment of [the Father], had not read the intermediary assessment of [the Father], and had no knowledge of the relevant toolkits. [MH] informed the Court via [the Father’s] Counsel that she was a friend of [DM] (the intermediary initially booked by [the Father]) and she had been requested to attend in his place. This is the fourth hearing at which [MH] has appeared in this capacity.”

  • The proceedings were re-listed but the application made for wasted costs was transferred to the High Court. The costs sought were in excess of £25,000.
  • The court set out the law relating to cost orders against non-parties namely, the application for costs is made under s.51 of the Senior Courts Act 1981 (‘SCA’) and the FPR r46.2. Section 51(3) of the SCA provides: “51(3) The court shall have full power to determine by whom and to what extent the costs are to be paid.”.
  • Further the court considered the decision by Mr Justice Keehan in Re ABCDEF [2019] EWHC 406 (Fam).
  • The court further considered the below principles from the matter of Ridehalgh v Horsfield [1994] Ch 205 and stated that, ‘this is not a wasted costs application under s.51(6) and therefore the principles set out do not strictly apply. However, in my view the approach set out in Ridehalgh are analogous to those to be applied in applications against third parties, such as experts or in this case those involved in the conduct of the trial, here an intermediary.’
  • Those principles are:
    1. Did the legal representative act improperly, unreasonably or negligently;
    2. Did that conduct cause the applicant unnecessary costs and
    3. Was it just in all the circumstances to order costs.
  • The court concluded that DM acted inappropriately in putting forward MH as an intermediary given her very limited experience and complete lack of training or preparation for the role. Consequently, DM was order to pay the costs, The court did not think it was just to make a costs order against MH
  • Lieven J said that, Intermediaries perform an extremely important function in ensuring a fair trial for highly vulnerable people in the family courts, usually parents. It is of great importance that they do that job to a professional standard and their role is properly considered and monitored, both at the stage of their appointment and during the conduct of the relevant hearings.’
  • This case has been past to the President of the Family Division who may offer further guidance in due course.

Takeaway Points:

  • Ensure the intermediary has the requisite qualifications and experience – request a CV.
  • Ensure the appointed intermediary is familiar with the relevant assessments relating to the client, case papers and has developed a rapport and relationship with the client before the hearing commences.
  • Ensure the appointed intermediary is familiar with the MoJ guidance document.
  • Ensure the appointed intermediary is familiar with the Advocates Toolkit
  • Ensure the appointed intermediary takes the Oath
  • Watch out for the guidance!

Useful Links:

Ministry of Justice Guidance https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/955316/registered-intermediary-procedural-guidance-manual.pdf

Advocates Toolkit

https://www.theadvocatesgateway.org/toolkits

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