The Impact of Mental Health in Public Law Care Proceedings and the Role of Intermediaries

The Impact of Mental Health in Public Law Care Proceedings and the Role of Intermediaries

In public law care proceedings, mental health issues can significantly affect the ability of individuals to participate effectively. The Family Procedure Rules 2010 (FPR 2010), particularly Part 3A (PART 3A – VULNERABLE PERSONS: PARTICIPATION IN PROCEEDINGS AND GIVING EVIDENCE – Justice UK), emphasize the need to consider the vulnerability of parties and witnesses, ensuring fair participation and evidence-giving. This is where intermediaries play a crucial role, especially for those with cognitive difficulties, a diagnosis such as autism spectrum conditions, mental health conditions, speech difficulties or learning difficulties.

As defined by FPR, r 3A.1 (PART 3A – VULNERABLE PERSONS: PARTICIPATION IN PROCEEDINGS AND GIVING EVIDENCE – Justice UK), an intermediary means a person whose function is to:

(a)communicate questions put to a witness or party;

(b)communicate to any person asking such questions the answers given by the witness or party in reply to them; and

(c)explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions;

An intermediary is taken to include a lay advocate who, whose function is to ensure that the party understands the information provided, responds to the same and is enabled to participate effectively in the proceedings. This was established in the case of Re C (Lay Advocates) (No2) [2020] EWHC 1762 (Fam) (C (Lay Advocates) (No.2) Secretary State For Justice v A Local Authority & Ors | [2020] EWHC 1762 (Fam) | England and Wales High Court (Family Division) | Judgment | Law | CaseMine) where it was held that HMCTS will fund the provision of a lay advocate for a court hearing in appropriate circumstances. It was also held that the Legal Aid Agency would fund the provision of a lay advocate to assist with communications outside of court, for example in conferences and meetings.

Understanding the Role of Intermediaries

Intermediaries are appointed to facilitate communication between the court and individuals with communication challenges. This role is vital in cases where individuals may have mental health conditions, learning difficulties, or other cognitive impairments.

Applications to instruct an intermediary are governed by FPR Part 18 (PART 18 – PROCEDURE FOR OTHER APPLICATIONS IN PROCEEDINGS – Justice UK), and the court must determine whether such an appointment is necessary to ensure fair participation. The decision to appoint an intermediary is ultimately at the judge's discretion, informed by cognitive assessments and intermediary evaluations.

Cognitive Assessments

Cognitive assessments, governed by FPR Part 25 (PART 25 – EXPERTS AND ASSESSORS – Justice UK), are expert evaluations that determine an individual's capacity to participate in proceedings. These assessments are crucial in justifying the need for an intermediary. They must demonstrate that without an intermediary, the individual cannot participate fairly, and alternative measures are insufficient.

The assessment process involves evaluating the individual's ability to understand, retain, and weigh information, as well as communicate decisions. This is essential in care proceedings to ensure that decisions are made in the best interests of the individual, particularly when their capacity to make informed choices is in question.

Communicourt is a specialised intermediary service provider offering communication support for individuals with communication difficulties in legal settings. Their services include communication assessments, provision of communication aids, and support during legal proceedings. They operate under the HMCTS Appointed Intermediary Scheme (HAIS) framework, ensuring high standards and recognition by the courts. Funding sources include government agencies, legal aid, social service organisations, or self-funding by individuals or families.

Communicourt intermediaries assist by clarifying questions, breaking down information, and providing communication aids, ensuring that individuals can express their wishes and decisions effectively. They work alongside legal professionals to facilitate meaningful participation in court proceedings.

Intermediaries must maintain impartiality, focusing solely on communication needs without forming opinions on the case. Their role is to ensure effective communication, not to provide legal advice.

Ensuring Compliance with ECHR Article 6

The use of intermediaries in public law care proceedings also aligns with the rights set out in Article 6 of the European Convention on Human Rights (ECHR) (European Convention on Human Rights - Article 6 | European Union Agency for Fundamental Rights), which guarantees the right to a fair trial. By facilitating effective communication and participation, intermediaries help ensure that individuals' rights under Article 6 are not infringed.

Recent concerns have been raised in the Family Courts regarding the excessive use of intermediaries, the case of X (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) (X & Y, Re (Intermediary: Practice and Procedure) | [2024] EWHC 906 (Fam) | England and Wales High Court (Family Division) | Judgment | Law | CaseMine) established that it should not be the default position that an intermediary is automatically required for a witness or party identified as vulnerable and needing special measures. It was held that only if the party's fair participation could not be achieved by other measures would an intermediary be necessary.

For example, in the case of West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam) (West Northamptonshire Council v KA & Ors | [2024] EWHC 79 (Fam) | England and Wales High Court (Family Division) | Judgment | Law | CaseMine) it was determined that the appointment of a deaf intermediary for the mother was proportionate for the entirety of the court hearing. Her communication issues were severe and so the use of an intermediary was deemed necessary to allow her to participate in the care proceedings effectively.

Conclusion

The integration of mental health considerations and the use of intermediaries in public law care proceedings are essential for ensuring fair and just outcomes. By facilitating effective communication, intermediaries help bridge the gap for individuals with cognitive difficulties, allowing them to participate fully in the legal process.