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Use of an intermediary in a care case – father with severe mental health problems

Diana Lessing discusses her recent experience of an intermediary assisting in a care case in which a father had  mental health problems

Particulars of the case

The child suffered a serious brain injury following a shaking or shaking/impact incident. The possible perpetrators were the mother or the father.

The father had mental health problems and suffered from a high level of anxiety and depression, anger management issues and was at times suicidal. In the first finding of fact he purported to confess to being the perpetrator, he then withdrew the confession alleging duress as a result of the proceedings, he then attempted suicide. A psychiatric report concluded that he lacked capacity, the Official Solicitor was appointed to represent his interests. The psychiatric advice was that he was suggestible and extremely depressed and the likelihood of real risk to his health if he was compelled to give evidence was high and he would not be able to withstand the perceived pressure of the court process. Any confession was likely to be unreliable given his suggestibility.

The mother wished to have a full finding of fact, her case being that she did not cause the injury and she wished to care for the child as a sole carer.

She made an application for the father to give evidence, if necessary with the assistance of an intermediary.

The official solicitor resisted the application. The second finding of fact was adjourned due to the father’s hospitalisation.

On the eve of the third attempt following an update by the psychiatrist the father regained capacity. The issues around his vulnerability and mental health remained. The Official Solicitor was discharged and the father agreed to give evidence.

The intermediary interviewed the father and agreed to assist at the hearing but her report indicated that without substantial special measures he would not be able to cope, and it was agreed that he would give evidence and participate by video link at a local venue, assisted by the intermediary at every stage.

The finding of fact hearing

In the event the father became increasingly anxious listening to the evidence by his video link and it became clear to those representing him that he would be unable to cope with even basic evidence in chief. The child’s future could not be planned without a finding. It was suggested on behalf of the father that he give evidence by way of a videoed conversation between his counsel (myself) and him, aided by the intermediary.

The intermediary assisted in preparing questions that the father would be able to answer to tell his version of the events leading up to the calling of the ambulance and the video was circulated to all parties. Any attempt at further questions of the father by way of cross examination had to be abandoned when the father was once again hospitalised following the video exercise.

The mother gave evidence.

The court found that the injury had been caused by the father and that the mother was wholly innocent. The child was eventually rehabilitated to her care following further assessment.

Legal issues

Whether the father could be compelled to give evidence

This father was a compellable witness the issue for the court was whether to actually compel him to give evidence. The fact that he lacked capacity was only one of many factors to take into account. The use of the intermediary to assist was at the discretion of the court and it was clearly a factor which the court took into account in trying to secure the father’s right to a fair trial.

Whilst the father remained a protected party he was assisted by Practice Direction FPR 2010 15B. An expert assessing a party’s ability to give evidence as a witness includes specific reference to the use of an intermediary, and the impact on the protected party of giving evidence.

Once the father was no longer a protected person his instructions prevailed and he was prepared to give evidence so we concentrated on the use of special measures.

The use of intermediaries in care cases

Intermediaries were created by the Youth Justice and Criminal Evidence Act 1999. They were originally for cases involving vulnerable and intimidated witnesses in criminal proceedings. The Ministry of Justice operates a national database of Registered Intermediaries (The Intermediary Register).

The funding of the intermediary was a court disbursement, and that included the initial obtaining of a report as to the viability of their assistance, following an assessment of the father, and thereafter the court authorised the specific named intermediary for specific days only.

The experience of working with an intermediary

The intermediary was primarily a speech and language expert.

The intermediary helped to simplify language, use one idea at a time, and allow the client to say at all stages if he had understood the information I was giving him. Often he would say that he did follow either to please professionals or to avoid admitting that his brain was not absorbing the complicated issues.

The intermediary reported that in her work with counsel throughout the court process she has found that most of us pride ourselves on being able to communicate with our vulnerable clients but in fact most of the clients will say they understand our advice when often the situation or the complexity of the advice has completely overwhelmed them and they have not been able to say so.

Human rights

The case raised issues about the conflict between the father’s right to a fair hearing, the mother’s right to one and to put her case fully and the child’s right to family life.

Lessons for the future

  • Vulnerable witnesses (including parents) in care cases may be helped by the use of an intermediary, whether or not that person lacks capacity.
  • If you are instructed by the Official Solicitor an intermediary may help rather than perhaps the use of an advocate?
  • Fluctuating capacity is often a feature for mentally ill clients, especially where the diagnosis is anxiety or depression rather than long term enduring diagnoses or permanent learning disability.
  • The court has complete discretion as to whether to compel a parent in care proceedings to give evidence.

Diana Lessing

Diana Lessing specialises in public and private law family law cases, representing adults, local authorities and children. As a solicitor in private practice for over 25 years she held higher rights of advocacy and was a member of the Children Panel and was regularly instructed by the Official Solicitor for parents.