username

password

Established
AlphabiolabsBerkeley Lifford Hall Accountancy ServicesHousing Law Week

Home > Judgments

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

An application for a costs order was brought by the LA, the parents, and the Children’s Guardian against DM and MH. DM was originally appointed as the Father’s intermediary and MH acted as his intermediary for 2 days of what was supposed to be the final hearing. The substantive case concerned care proceedings brought by the LA. Mrs Justice Lieven determined that a costs order against DM was justified.

___

The Background

The LA brought an application for public law orders under the Children Act 1989 in respect of three children. A 4-day final hearing was listed to begin on 19 July 2021. Intermediaries were appointed for both parents.

DM was approached to act as intermediary for the Father. DM frequently acts as an intermediary, and also as an agency for other intermediaries. DM accepted instruction to act as intermediary, but on 14 July 2021 he notified Father's solicitors that he would not be available. DM put forward MH to stand in his place. DM presented MH as a competent intermediary who had 'acted as intermediary for XX numerous times.'

During the hearing, it became apparent that MH had not seen the list of questions to be put to the Father, which had been agreed at the ground rules hearing. MH had not read the Father's cognitive assessment or his intermediary assessment. MH had no knowledge of the relevant Advocate's Toolkits. The Father informed the Court that during the hearing he had not understood parts of the evidence and had not been assisted by MH at those times. It further transpired that MH did not understand the role of an intermediary and had minimal experience of acting in that capacity.

MH's deficiencies as an intermediary led to the trial judge adjourning the trial. The LA, the parents, and the Children's Guardian all sought their costs for the abandoned hearing. The costs application against DM and MH was transferred to the High Court, and DM and MH were joined as parties solely for the purpose of this hearing. The LA represented the unified view of the other parties.

DM and MH appeared in person, and DM produced written evidence. It appeared from DM's documentation that MH had acted as an intermediary in one previous matter in June 2021, having been proposed by DM. DM's email to the solicitor in the June case was deemed relevant to the instant application, because it was seriously misleading in respect of MH's ability to act as an intermediary. DM suggested in the email that he had prepared MH for the role, yet MH had not read or been made aware of the Advocate's Gateway nor was she aware of the need to read the client's intermediary assessment. DM described MH as having limited experience but at the time of the email she had no experience at all as an intermediary.

Costs orders against non-parties

The application for costs was 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."

The ability to make a costs order against an expert was considered and confirmed by Keehan J in Re ABCDEF [2019] EWHC 406 (Fam) . The principle that a third party, who is not a funder but who is involved in court processes, can be subject to a costs order is established.

The Judge noted the tests under the wasted costs regime in s.51(6) of the SCA, and in Ridehalgh v Horsefield [1994] Ch 205 where the Court applied a three-stage test. Namely, (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. Although this was not a wasted costs application, the approach was deemed to be analogous to those to be applied in applications against third parties.

The requirement for causation between the third party's actions, and the costs incurred, was clearly established. There was no doubt that without the behaviour of DM and MH, the wasted costs would not have been incurred.

Submissions

The LA argued that this was a straightforward case, and that the wasted costs were entirely caused by DM's conduct. The LA also relied on the fact that in the June 2021 matter, DM had put forward MH and suggested she had some experience when this was not true.

DM argued that the trial judge should have ensured the intermediary was competent, that the Court was not obliged to use MH, and the solicitors were not obliged to put her forward. The responsibility was therefore on them to ensure she was competent. Further, the Intermediary Oath was not taken.

MH did not submit a statement and in her oral submissions she was extremely apologetic and said she would not work as an intermediary again. MH appeared to believe that the role of an intermediary was simply to be there as a supporter or friend to the party.

Conclusion

The lack of clear guidance on the use and roles of an intermediary makes it difficult to ensure that the person who puts themselves forward as an intermediary understands the role and is competent to perform that role. The lack of guidance also means there is no definition on who may be appropriate to act as an intermediary, what training or qualifications they have, or what checks a judge or solicitor should undertake.

The Judge determined that what went wrong in this case was the result of misrepresentation by DM and not a lack of guidance, or any default, by the Judge or the Father's solicitors. DM acted inappropriately in putting MH forward as an intermediary given her very limited experience and complete lack of training or preparation for the role without at the very least fully explaining the position to the solicitors. His failure to act appropriately in this regard directly led to MH being appointed and in turn to the hearing collapsing.

There were exceptional circumstances which justified a costs order against DM. The Judge did not consider it just to make an order against MH given that it was clear she had no idea what the role entailed or what she was getting herself into.

This judgment will be passed to the President of the Family Division, for him to consider what steps it may be appropriate to take within the Family Court to ensure that intermediaries appointed are competent to undertake the role.

Case summary by Kate Pearson, Barrister, St John's Chambers



Covid-19 Protocol:  This judgment was handed down by the judge remotely by circulation to the parties' representatives by email.  The date and time for hand-down is deemed to be 10.30am on 15 October 2021

Neutral Citation Number: [2021] EWHC 2794 (Fam)

Case No: DE20C00062

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/10/2021

Before :

MRS JUSTICE LIEVEN
- - - - - - - - - - - - - - - - - - - - -
Between :

A LOCAL AUTHORITY
Applicant
and

MOTHER
First Respondent
and

FATHER
Second Respondent
and

A
B
C
(minors by their Children's Guardian)
Third to Fifth Respondents


- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Ms Kate Spence (instructed by A Local Authority) for the Applicants
The First Respondent
did not appear and was unrepresented
Ms O'Reilly
for The Second Respondent
The Third to Fifth Respondents did not appear and were unrepresented

Hearing dates: 13 August 2021
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
.............................

MRS JUSTICE LIEVEN

This judgment is being handed down in private on 15 October 2021. It consists of 53 paragraphs.  The judge does not give leave for it to be reported until it has been anonymised by counsel and approved by the judge.

 
Mrs Justice Lieven DBE : 

1. This is an application for a costs order against DM and MH, who have been joined as parties for the purposes of this application.  The substantive case concerns care proceedings brought by the Local Authority ('LA'), in respect of three children. The First and Second Respondents are the Mother and Father respectively.

2. DM was originally appointed as the Father's intermediary and MH acted as his intermediary for 2 days of what was supposed to be the final hearing. MH's deficiencies as an intermediary led to the trial judge, Recorder Willsteed, adjourning the trial. 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. Ultimately, the losers have been three young children and their parents whose care proceedings have been yet further delayed by the collapse of the trial.

3. The LA, parents and the Children's Guardian apply for costs. The LA was represented before me by Ms Spence and the Father by Ms O'Reilly, both of whom had appeared at the trial. DM and MH were both joined to the proceedings and appeared in person. The other parties did not appear before me.  Both DM and MH had been given full notice of the hearing and the opportunity to file statements and appear before the court. They both appeared before me in person.

The Background

4. The LA applied on 6 March 2020 for public law orders under the Children Act 1989 in respect of three children. The case was listed, on 21 December 2020, for a 4 day final hearing on 19 July 2021. During the early stages of the case it was evident to all the professionals that both parents would require assistance to aid their understanding and communication. Therefore, on 8 June 2020, intermediaries were appointed for both parents. Initially BI was appointed for the Father and assisted him at earlier hearings, but she was not available for the final hearing so a new intermediary was required.

5. On 26 May 2021 the Father's solicitors approached DM and he agreed to act as the Father's intermediary in the trial commencing on 21 July. DM runs an organisation which provides consultancy services in relation to care homes and private clinics.  DM has frequently appeared as an intermediary and I make clear at the outset that there is no suggestion that DM himself is not a competent intermediary. He is not a registered intermediary within the MoJ Criminal Courts scheme, which I refer to below. The various emails which I refer to, and DM's statement, indicate that to some degree at least he acts as a clearing house or agency for intermediaries when approached by solicitors.

6. He accepted the instruction in respect of the Father. I have not been shown any formal contract of appointment, but there was an exchange of emails between him and the Father's solicitors. It appears to be the case that there is no specific written contract with intermediaries in the family courts, and therefore there is nothing material about the absence of one here. It is apparent that at the date of DM's appointment he was aware of the trial date in July.

7. Unfortunately, on 14 July 2021 at 15.43 DM sent an email to the Father's solicitors saying that it was highly unlikely that he would be released from a hearing he was acting in at Norwich Crown Court. It should be noted that this was only 2 working days before the 4 day trial was due to start.  He said:

"…I have a network of intermediaries where we have been overwhelmed with demand for services….

However I have asked MH to stand in for me. MH has acted as intermediary for XX numerous times and comes with the experience of special educational needs. She is competent and available and is able to serve for the durations of the listing…. I will completely handle the hand-over.

Would this be ok ? Please do confirm asap and I apologise for not being available as stated previously…"
[emphasis added]"

8. On 19 July MH attended at Chesterfield Family Court to act as the Father's intermediary. The Mother also had an intermediary. The intermediaries were not asked by the Court and did not make the Intermediary Declaration set out in the Ministry of Justice guidance document.

9. Written questions for the Father had been prepared in advance and agreed at a ground rules hearing as part of the Interim Resolution Hearing ('IRH'). It is a standard part of the role of an intermediary to consider such questions and ensure that they are appropriate for the party being assisted.  At the end of day two of the trial, 20 July, after hearing the evidence of the Mother, Ms Spence informed all parties of her intention to revise the questions to be asked of the Father and she said she would provide those to MH on the following day.

10. MH was provided with the revised questions the following morning, at which point she stated that she had not seen the original questions. Upon being asked by Ms O'Reilly, the Father's counsel, it became apparent that MH had no knowledge of the relevant Advocates Toolkits; had not read the Father's cognitive assessment and had not read his Intermediary Assessment. I note that MH said to me that she was not sure whether she had read these documents or not, but given that she wasn't sure, she had thought it best to say to the Father's lawyers that she had not read them. It is no better that she did not know whether she had read them, than if she had not read them at all. Both Ms O'Reilly and Ms Spence say it also came to light that MH was "not a Court intermediary" but, as I explain below, it appears that technically, certainly in the Family Court, there is no such official person or identity.

11. The Judge was informed of the issue and further information was requested. The Court was then informed of the matters as set out below. I note that some of these matters were expanded and further explained before me, but I set out first the information given to the Judge:

a. DM had asked MH to stand in for him, during a phone call on 14 July;

b. MH was a friend of DM and they had met 5-6 years ago in her capacity as an English teacher;

c. MH acts as a supporter to individuals in a capacity she would describe as a "life coach";

d. Her experience as an intermediary spanned 2 weeks. She attended two CVP hearings separately to the clients, and one in a solicitor's office. She could not remember the court she was "in", and her attendance was at the request of DM. When I asked her about this previous experience, it transpired that there was one case, heard remotely in Norwich Family Court, which lasted 3 days. She did not appear to me to understand the difference between one case spanning 3 days, and three separate cases.

e. She had had difficulty in accessing the file in the present case and had only managed to do so on the morning of the hearing. Her preparation had involved "looking through the file". She told the Judge that she had not read the cognitive or intermediary assessment;

f. She felt that she had assisted the Father to the best of her ability;

g. She apologised to the Court and said she would not act as an intermediary again.

12. The hearing was paused to enable the Father's legal team to try to identify an alternative intermediary. One was identified but they were not available to meet with the Father immediately. They met on 23 July for the first time at Court.

13. The Father informed the Court via counsel that during the hearing he had not understood parts of the evidence and had not been assisted by MH at those times. The Judge confirmed that she had observed minimal interaction between the Father and MH.

14. An application was made on behalf of the Father for the Judge to bring the final hearing to an end and remit for a fresh hearing. The LA and the Guardian opposed this application and proposed that the hearing be extended to enable the Father the opportunity to be guided through the evidence so far.

15. On 23 July the Judge delivered judgment concluding that the hearing could not fairly proceed. The matter was adjourned to 27 July 2021 for further directions. The order of 23 July records at recital 6:

"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."

16. The case came before HHJ Williscroft, the Designated Family Judge for Derby, on 27 July. She made directions for the further conduct of the substantive application, with a final hearing commencing on 18 October. She transferred the matter of the intended costs applications against DM and MH to the High Court to be listed before me. She joined DM and MH as parties solely for the purpose of the hearing in the High Court. She indicated that the LA should represent the unified view of the other parties, although also indicated that the Father's representative, Ms O'Reilly, could also attend.

17. The LA, the Mother and Father, and the Children's Guardian all seek their costs of the abandoned hearing. Those costs are:

Local Authority = £6894.00 (counsel's fee + 25% of the psychological report by Dr Lynch)

First Respondent Mother = £7330.34 (counsel's fee + 25% of the psychological report by Dr Lynch)

Second Respondent Father = £7932.78 (counsel's fee + of the psychological report by Dr Lynch)

Children's Guardian = £5165.15 (counsel's fee +25% of the psychological report by Dr Lynch)

18. DM produced a statement for this hearing, to which he attached various documents and extracts from documents. MH did not file a statement. Neither chose to be represented.

19. It appears from DM's documentation that MH had acted as an intermediary in one previous matter in June 2021, again having been proposed by DM. DM's email to the solicitor in that June case is relevant to the application before me. On 22 June he wrote to the assisted party's solicitor:

"I appreciate the importance of progressing on this case. As mentioned, it has been difficult to assign the overwhelming number of intermediary requests within my team that includes Consultant Psychiatrists who often step in to help out.   

The case tomorrow will have [MH] act as intermediary where I have prepared her for the role in which she has limited specific experience.  [MH] is well versed in communications having taught English, has been in care as a provider and in supportive special needs care.

[MH] has cleared her diary also for Monday and Tuesday next week in order for us to progress.  I have every confidence in her competency but am also aware of her limited professional experience in this specific role.

Please let me know if we need to discuss further, as this is the only option I have for an intermediary for this case.  I am aware that all other intermediaries are fully booked as we all communicate with one another and often help each other out with scheduling. My case has overrun which is what has presented the aforementioned difficulties.
[emphasis added]"

20. There are three points to make about this email. Firstly, it appears that once more DM had overcommitted and therefore had to pull out of a trial very late in the day. Secondly, he suggests in this email that he had "prepared her [MH] for the role in which she has limited specific experience". In fact MH had not read or even been made aware of the Advocate's Gateway, nor was she aware of the need to read the client's intermediary assessment and, so far as I can tell, she had almost no idea about the role of an intermediary. Further, DM's email says that MH had "limited" experience, whereas in fact at the time of this email she had no experience whatsoever as an intermediary. I consider DM's email to be seriously misleading in respect of MH's ability to act as an intermediary.

Costs orders against non-parties

21. 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."

22. The ability to make a costs order against an expert was considered and confirmed by Keehan J in Re ABCDEF [2019] EWHC 406 (Fam) . That case concerned an expert whose palpable defaults had led to the need to adjourn a trial. Keehan J made an order for the costs that had been wasted by the adjournment to be paid by the expert. The facts of the case are different, and Keehan J's decision turned on the expert's failure to comply with court orders. However, the principle that a third party, who is not a funder but who is involved in court processes, can be subject to a costs order is established.

23. There is no doubt that the Court has the power to make an order against a third party if the requirements of s.51 are met. In Dymocks Franchise System v Todd (Costs) [2004] UKPC 39, the Privy Council considered the principles applicable for making a third party costs order. Many of those principles are irrelevant because they relate to costs orders against funders. At [25] the Privy Council said:

"(1) Although costs orders against non-parties are to be regarded as "exceptional", exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such "exceptional" case is whether in all the circumstances it is just to make the order. It must be recognised that this is inevitably to some extent a fact-specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, some against."

24. I have also had regard to the tests under the wasted costs regime in s.51(6) of the SCA and Ridehalgh v Horsefield [1994] Ch 205, where the Court applied a three stage test. Namely, (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. 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.

25. There is a considerable amount of caselaw about the requirement for causation between the third party's actions (normally the funder) and the costs incurred. However, in this case that difficulty does not arise because there can be no doubt that without the behaviour of DM and MH the wasted costs that are being sought would not have been incurred. It might be argued that if MH had not acted at all, then the trial would have had to be adjourned. That may or may not be the case, but the costs of the days in court would have been wasted if the trial had been adjourned even 2 days in advance. Further, it is speculative as to what the Judge would have done in that situation.

Submissions

26. Ms Spence for the LA argues that this is a straightforward case. The trial had to be adjourned because of MH's lack of knowledge of what the role of being an intermediary entailed, her failure to read any of the relevant material both in respect of the Father himself (in particular the relevant assessments) or the most basic information for an intermediary (the Advocates Toolkit). She had no experience, qualifications or training as an intermediary and was incapable of undertaking the role. When her failure to assist the Father in the way expected by a competent intermediary emerged, the Judge had no choice but to adjourn the hearing and order a re-hearing.

27. Ms Spence argues that this situation, and the wasted costs, were entirely caused by DM's conduct. He had proposed MH to the Father's solicitors in full knowledge that she had only acted as an intermediary in one previous case for 3 days; had received no training for the role; had not himself explained the role to her; had not told her what papers she needed to read, nor told her to read the Advocates Gateway. In effect he had misled the Father's solicitor into believing that MH was an experienced intermediary where this was not the case.

28. Ms Spence also relied on the fact that in the June 2021 matter DM had again put forward MH, suggesting that she had some experience as an intermediary when this was not true.

29. Although the application for costs was made against DM and MH, and Ms Spence argued they were both responsible for the collapse of the final hearing, the main focus of her argument was upon DM.

30. DM and MH have been made parties and were given the opportunity both to submit any written submissions and evidence, and to make oral submissions. DM submitted a written statement and they both spoke to me during the hearing.

31. DM's statement and supporting documentation were largely concerned with showing that he himself was a proper person to be acting as an intermediary. He was extremely apologetic about what had happened. He said he was fully aware of the listing pressures and the great difficulties in finding intermediaries at short notice, particularly during the Covid pandemic. It was in a spirit of trying to be helpful that he proposed MH, who was a friend. He felt she had relevant experience from teaching English and her experience as a care worker and a life coach. He also referred to the fact that she was trained in Enneagram (a programme concerned with different personality types).
32. He said he had spoken to her when he handed over the case. He knew she had some IT issues when handing over the case on 14 July, but he believed she would be able to access the documents. He says in the statement:

"I sent [MH] all the reports and the contact for the original Intermediary who authored the report as soon as I received the "ok" from the solicitors to place her see email enclosed herein. Perhaps I should not have assumed she would read and digest the reports as she should have.  I acknowledge that I should have taken her through The Advocates Gateway."

33. In his written statement he argued that it is incumbent upon the trial Judge to ensure that that the intermediary is competent and that the Judge did not do that. The Court was not obliged to use MH and the solicitors were not obliged to put her forward. The responsibility was therefore on them to ensure that she was competent to perform the role. Further, he points out that the Intermediary Oath was not taken. DM points out that he has no financial agreement with the solicitors or the Court to be a preferred provider.

34. MH did not submit a statement. In her oral submissions to me she was again extremely apologetic about what had happened and said she would not work as an intermediary again. She accepted that she had not read, or heard of, the Advocates Gateway and that she was not sure if she had read the assessments of the Father. She said that she felt she had been able to help the Father by supporting him and she had thought that he had understood what was happening during the trial.

35. MH appeared to believe that the role of an intermediary was simply to be there as a supporter or friend to the party. She referred to her work as a life coach and to be trained in Enneagram, a communication programme. She seemed to have no appreciation of the intermediary's role in the trial, in checking and where necessary explaining questions, and in ensuring the party understood both the questions and as appropriate the evidence.

The role of intermediaries

36. The position in respect of the appointment, qualification and duties of intermediaries is not particularly clear.  Part 3A.1 FPR defines an intermediary as follows:

"'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."

37. There is no further guidance, or Rules, on the duties, training or qualifications of an intermediary in the family justice context. However, in the criminal courts, where intermediaries were introduced in the Youth Justice and Criminal Evidence Act 1999, the Ministry of Justice has produced guidance in Registered Intermediary Procedural Guidance 2020. This document sets out a Code of Ethics and a Code of Practice for registered intermediaries, as well as detailed guidance on the duties and functions of a registered intermediary. I note that there is no requirement, even in the criminal courts, that intermediaries be registered, and DM, who operates in criminal and family courts, states in his documentation that he is not a registered intermediary.

38. Although I was shown the MoJ Guidance, in my view it is has limited relevance to the issues that I have to decide. It is guidance in respect of the criminal courts and not the family courts, and there is no suggestion that it has been or should be adopted in family courts. Further, neither DM, nor self-evidently MH are, or hold themselves out as, registered intermediaries. It therefore would not be fair to seek to import standards from that Guidance into the present context.

39. Arguably more relevant to this case is the Advocates Gateway internet site, which has an extensive section on the role of intermediaries. This explains the role of intermediaries and has a series of very helpful podcasts on how intermediaries should operate and essential skills.

40. MH said that she had not familiarised herself with the Advocates Gateway and indeed did not know it existed. DM accepted that he had not told MH that she should look at this website entry.

41. There is an oath which should be taken by all intermediaries which is as follows:

"I do solemnly, sincerely and truly declare that I will well and faithfully communicate questions and answers, and make true explanations of all matters and things as shall be required of me according to the best of my skill and ability."

Conclusions

42. 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. Although intermediaries, certainly in the family courts, are not subject to any regulatory scheme, they are part of the justice system, and they are paid for their services by HMCTS. As such, they should be subject to professional standards appropriate for the role they are being paid to undertake. It would undoubtedly be helpful if these were set out in one document in a similar manner to the MoJ Guidance in relation to intermediaries in the criminal courts.

43. This case well illustrates how the lack of clear guidance on the use and roles of an intermediary makes it difficult to ensure an understanding by the person who puts themselves forward as an intermediary is competent to perform that role. The lack of such guidance also means that there is no definition on who may be appropriate to act as an intermediary, what training or qualifications they have, or what checks a judge or solicitor should undertake. This makes the appointment and conduct of the intermediary ripe for the kind of problem that arose in this case.

44. However, in my view, what went wrong in this case was the result of misrepresentation by DM and not a lack of guidance, or any default, by the Judge or the Father's solicitors. In his email to the Father's solicitors on 14 July he said that MH had acted as an intermediary for XX "numerous times" and that she was "competent". In fact, she had acted in one trial and DM had little or no basis for saying she was competent. He had not told her to read the Advocates Gateway, and self-evidently he had not checked whether she had understood it, or even in the widest sense understood her role.

45. Further, and in my view importantly, when MH was appointed as an intermediary in June 2021, DM had again misrepresented the position to the solicitors. He said "she has limited specific experience" in the role. In fact, she had no experience whatsoever, and it follows from what she said in court to both myself and the Judge, DM had not given her in June (or July) the basic information about her role.

46. DM was holding himself out to both sets of solicitors as being in a position to put forward MH as an appropriate person to act in his stead. Whether he did this simply in the spirit of being helpful, or because in both cases he had had to pull out of trials at the last minute, despite having been booked well in advance, does not matter. He misrepresented MH's experience and took no steps to ensure her competence to act.

47. It was these misrepresentations that led the solicitors to appoint MH as the Father's intermediary. It is unfortunate that the solicitors did not question MH on her experience. However, in the light of DM's assertion that she had acted as an intermediary numerous times, I do not think they can be criticised for not doing so. The emails show that DM was acting as something of a clearing house for finding intermediaries and was himself known to both sets of solicitors. They were therefore entitled to rely on his assurances as to MH's experience and qualificators. However, the unfortunate history of this matter does suggest that it would be sensible for solicitors when appointing intermediaries of whom they have no direct knowledge, to ask for a CV of the person in the same way as would take place with an expert. This would act as some fairly rudimentary check on the competence and experience of the individual.

48. I reject DM's argument that it was incumbent on the Judge to ensure that the intermediary was competent. As soon as the Judge was alerted to the problems with MH she undertook all appropriate steps. It is not for a judge to conduct an initial examination of an intermediary, any more than it is for the judge to test the competence of an interpreter. In practice it is the assisted party's solicitor who is expected to ensure the intermediary is appropriate, but in this case the solicitor reasonably relied upon the assurances given by DM. It must be remembered that the intermediary is supposed to assist the party and the court, not be an additional burden.

49. In my view, DM acted inappropriately in putting MH forward as an intermediary given her very limited experience and complete lack of training or preparation for the role without at the very least fully explaining the position to the solicitors. His failure to act appropriately in this regard directly led to MH being appointed and in turn to the hearing collapsing.

50. I understand that DM would say that he was only trying to assist the Court by proposing MH. However, even assuming that is correct, it cannot be an excuse for the misrepresentations he made about MH's experience and competence. I am aware that there is a considerable demand for intermediaries, and it is sometimes difficult source them. However, this should lead both the parties and the judge to be careful to ensure that the tests for having an intermediary are fully met, rather than encouraging the appointment of unsuitable persons.

51. Applying the test in s.51 of the Senior Courts Act, I find that there are exceptional circumstances which justify an award of costs. DM acted in an entirely inappropriate manner and that led to significant wasted costs. It is therefore just to make a costs order against him for those wasted costs.

52. I do not consider it would be just to make an order against MH. It was clear from her submissions that she simply had no idea what the role entailed, or what she was getting herself into. She thought she was being asked to do no more than sit beside the Father and be some kind of support for him. If intermediaries are to be viewed as one part of the way that fair trial rights are to be protected, and to be paid a professional fee for their attendance, then their role is necessarily much greater than MH believed. However, because of DM's failure to instruct her as to the role, she simply had no idea why she was unable to fulfil the true role. It would be very unfair on her to make her pay for a situation which was not in any sense her fault. I therefore make no order against her.

53. I intend to pass this judgment to the President of the Family Division, for him to consider what steps it may be appropriate to take within the Family Court to ensure that intermediaries appointed are competent to undertake the role.