Zenith Family Current Awareness

INTERMEDIARY ASSESSMENTS - Who should pay?

21 December 2016

Lucy Sowden

HMCTS V LAA

Intermediaries are vital within care proceedings involving parents who are deaf or those with learning disabilities.

It is commonly accepted practice that the provision of interpreters and intermediaries to assist the parties during Court hearings will be funded by HMCTS.

It is also accepted that the cost of interpreters and intermediaries to assist the parties during meetings with their own representatives will be covered by their LAA funding certificates.

However the funding of an assessment to establish whether Intermediaries are necessary seems to be a grey area.

The (current) leading cases in this area are set out below. These seem to suggest that it should be the LAA who pays for such assessments:

Re A (a child) [2013] EWHC 3502 and in particular paragraph 79 which reads (emphasis added):

" 79. So far as funding is concerned, there is a distinction between, on the one hand, the cost of obtaining a report from an expert as to capacity and competence and, on the other, the cost of providing services from an intermediary.  The former will, subject to the approval of the legal aid agency, fall under the public funding certificate, whereas the latter, as a type of interpretation service, will, as far as I understand the rules, be borne by the Court Service.  It is important that those representing the relevant party address these funding issues at the earliest opportunity.  They should obtain prior approval from the legal aid agency for the instruction of the expert and, as soon as possible, give notice to Her Majesty's Courts and Tribunal Service that the services of an intermediary are likely to be required."  

D (a child) (No 2) [2015] EWFC 2 and in particular paragraph 17 which reads (emphasis added):

" 17. The cost of funding an intermediary in court properly falls on Her Majesty's Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of 'representation' but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37, and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, paras 26-27; see also Q v Q, Re B (A Child), Re C (A Child) [2014] EWFC 31, para 52. But where the services of an intermediary are required otherwise than during a court hearing, the cost falls on the LAA: see Re C, para 27. And the cost of obtaining a report from an expert as to capacity and competence and/or as to the extent of any special measures required, as opposed to the cost of providing services from an intermediary, likewise falls on the LAA: Wiltshire Council v N, para 79."

However the LAA current position is that any assessment as to whether an intermediary is necessary should be paid for by HMCTS as the intermediary is for the benefit of Court proceedings.

The debate between HMCTS and the LAA will continue but the key practical point is that when instructing an intermediary to undertake an assessment, the Order must be clear that the intermediary is not solely for the purpose of establishing whether a party can give evidence nor is an intermediary merely being instructed to benefit the Court, but in fact will be of a wider practical purpose. For example:

‘The assessment of the intermediary would benefit all parties including the representatives of the parents in knowing what was required in terms of communicating with the parents both in a court setting and outside of court in client meetings and would also assist with meeting professionals including the Children’s Guardian.’

This hopefully will be acceptable to the LAA to enable parties to share the costs of intermediary assessments until further case law clarifies the position as to who should pay.

Current Awareness

By the Family team