TLDR: This is the text of a presentation I made at the St Johns Chambers conference on May 13 2026. I attempt to set out the mandatory framework for the approach to vulnerable witnesses/parties. My over-arching concern is that, yet again, family practitioners will be expected to fill the gaps in the system by offering services for which they are not trained and not paid. If resources squeeze reduce the availability of intermediaries/advocates I think its clear that we will be expected to get creative.

HOW TO BALANCE THE EVILS OF PROCEDURAL UNFAIRNESS AGAINST A WASTE OF PUBLIC RESOURCES.

• What do we mean by vulnerable?
• The development of a framework for vulnerable witnesses/ parties
• Who can help you identify vulnerability?
• Legal test when applying for an intermediary/advocate
• Look out for court disenchantment!
• Look after yourself as well

What do we mean by ‘vulnerable’

1. There are infinite ways to be vulnerable in any court, but probably in the family courts most of all. Sir James Munby spoke to the Wales Observatory on Children and Young People in 2015 and said this

Children precisely because they are children are vulnerable, but so are many of the adults who come before the family courts, whether as parties or witnesses. Vulnerability comes in many forms, physical, mental and social to mention but three …For many litigants in family cases, English is not their mother tongue. Some are illiterate. Some are deaf or blind or have other physical disabilities …  a significant number of parents involved in care proceedings have often significant learning disabilities. Another kind of vulnerability is exemplified by the victims of actual or anticipated domestic violence, forced marriage, female genital mutilation or even worse.

• It’s that last category of vulnerability which I suspect is often the most difficult to navigate. If someone is in a wheelchair, the impact of that on participation is hopefully immediately obvious and the ‘fix’ relatively easy – make sure the lifts are working! Make sure client can access witness box or give evidence from his or her seat etc

• But for those whose vulnerabilities stem from exposure to emotional harm, these may be less obvious and a ‘fix’ less immediately apparent. Laura Rosefield a former barrister and now divorce consultant describes how in family cases, trauma can affect how witnesses give evidence, their decision making ability and judgement, their capacity to instruct and correspond with their lawyers, their ability to parent, and on their general demeanour and ability to cope. It could cause fragmented thinking. She refers to the crippling effect of the ‘tsunami of exhaustion’. 

• Even before we get to the legal requirements we need a basic understanding of
  • Why people have come to court – what’s the background?
  • The impact of the court process
  • What we can do to help within and outside of the legal framework

• We have to be acutely aware of the difficulties we will face from the very outset. For e.g. many courts are very poorly designed or crammed into physical spaces that don’t work for what we need – special measures such as different entrances/exits or designated conference rooms may simply not exist. Some court rooms are small and won’t easily accommodate screens. It is easy to forget just how alien and confusing a court environment is for litigants, this is probably their first time involved in any kind of court proceedings.

• The process itself is adversarial, no matter how we try and soften it. Rule 22.2(1) (a) FPR provides that any fact that needs to be proved by the evidence of a witness at a final hearing is to be proved by their oral evidence. And that is the key word ‘proved’ – outcomes in family cases very often depend on proof of facts. The Judge is not there to ‘believe’ anyone but to assess their credibility against the evidence they provide, and how they provide it. This process can often be very brutalising. However ‘trauma informed’ we become we cannot escape this – but we can do our best to mitigate the harm this can do to vulnerable parties.

The development of a framework – What does court expect us to do?

• Barristers and solicitors are under core professional duties to uphold the law and the proper administration of justice and that will include doing what we reasonably can to sure our clients understand the process and what to expect from it.
• The court is a public authority and cannot act incompatibly with a ECHR right, including the right to a fair trial, and is also under statutory obligation to make reasonable adjustments for a disabled person under the Equality Act 2010. See also the Equal Treatment Bench Book.
• The FPR has the overriding objective of enabling the court to deal with family proceedings justly having regard to the welfare issues involved, but allotting an appropriate share of the court’s resources.
• So we were not completely without a framework, but it was not a dedicated one and many were worried in the run up to the change to the FPR, that the family courts were certainly lagging behind the criminal courts in their response to vulnerable witnesses. In 2015 Sir James Munby said

Can we honestly assert that we are as alert as we should be to the problems and the imperative need to ensure that the vulnerable who come before us … are enabled to participate as they are entitled to, fairly and properly in the proceedings and not left in a position of disadvantage? Although I would like to think so, the truth is that much, much, much more needs to be done’

1. His pessimism was shared by many. The Vulnerable Witness and Children Working Group produced its final report in February 2015 and on 27 November 2017 Part 3 A was added to the Family Procedure Rules [FPR] Vulnerable persons: participation in proceedings and giving evidence along with Practice Direction 3AA. The Domestic Abuse Act 2021 introduced in 2022 a presumption of vulnerability for those at risk of domestic abuse.
2. Peter Jackson LJ in re M discussed below, described these provisions as ‘a comprehensive code, designed to strike a fair balance between the rights of vulnerable individuals and the demands of the system. They are of fundamental importance to the administration of family justice’. The onus is now squarely on the court and the lawyers to proactively address vulnerability, reflecting evolving understanding of trauma and access to justice.
3. The FPR do not specifically define ‘vulnerability’ but rule 3A.7 requires the court to have regard to the following matters
   • The impact of any actual or perceived intimidation from other parties, witnesses or family members
   • If a party suffers a mental disorder or impairment of inte
   • Nature and extent of the information before the court
   • Issues arising in the proceedings, including concerns arising in relation to abuse
   • Is the matter contentious
   • The age, maturity and understanding of the party or witness
   • The social, cultural and ethnic origins
   • Domestic circumstances and religious belief
   • A litigant in person who is going to be cross examined – we now have the Qualified Legal Representative scheme, introduced by the Domestic Abuse Act to prevent alleged or actual victims of abuse being cross examined by their alleged or actual abuser
   • Any characteristic of the party or witness which is relevant to the participation direction which may be made
4. Practice Direction 12 J also gives further definition of what is ‘abuse’ including patterns of coercive and controlling behaviour.
5. Case law will continue to grow about specific areas of vulnerability and how to deal with them – for e.g. case law on how to deal with the admission into evidence of intimate and explicit images – see Re M (A Child: Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam). The court will be concerned with relevance, necessity and proportionality and must balance the right to a fair hearing with the need to protect parties, especially vulnerable witnesses from unnecessary distress and humiliation and consider less invasive alternatives before allowing viewing of intimate images.
6. See also the Family Justice Council Guidance on Neurodiversity in the Family Justice System for Practitioners 30 January 2025.
7. For children, there is a well trodden route of considering whether or not they should give evidence following the Supreme Court decision in Re W (Children) [2010] UKSC 12. In essence the court must weigh the advantages that calling the child will bring to the determination of the truth against the damage it may do to the welfare of the child.

Court’s duty to consider participation directions

1. Once a person is found to be vulnerable, there is a DUTY on the court to consider if a vulnerable party’s participation in proceedings or the quality of their evidence is likely to be diminished and whether it is necessary to make a participation direction. This must be identified at the earliest opportunity but its an ongoing duty. A failure to apply this procedure makes it highly likely that the resulting trial will be found unfair – see Re N (A Child) [2019] EWCA Civ 1997.
2. These are two distinct issues – one may exist without the other or both may be present. So if an intermediary for example is required to help giving evidence, they may not be required to attend the whole hearing.
3. The court has general case management powers to consider the structure and timing of the hearing, the formality of the language to be used and what facilities the court has to put distance between parties.
4. There must be ground rules hearing to give the participation directions – it’s not often a good idea to squeeze this into the 15 minutes before the trial starts. There is no exhaustive list of what you might cover but these are the kind of issues that may crop up.
   • How will the party communicate and whether aids are required
   • Is an intermediary required? Do question need to be submitted in advance?
   • Language used –for e.g  avoid ‘tag questions’, keep it short and simple, signpost new topics and avoid ‘do you remember’ questions See 20 Principles from the Inns of Court Advocacy Programme  20-Principles-of-Questioning.pdf
   • Provision for scheduled breaks
   • Provision for additional time to receive advice and explanation of the evidence
   • Separate entrances, waiting rooms, screens or live links
   • Timing of hearings – is someone likely to do better in the morning, will they get tired?
   • Support from other person/object/ familiarisation visits
5. The Practice Direction makes clear we are expected to be familiar with and to use the techniques employed by the Advocacy Training Council Toolkits | Advocate’s Gateway. There are some very useful Toolkits here such as Toolkit 4 – Planning to question someone with a learning disability and Tool Kit 10  Identifying vulnerability in witnesses and parties and making adjustments. The November 2025 update to Presidents Guidance Use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court at para 13 explicitly directs us to consider Toolkit 13, relating to vulnerable witnesses in the family courts.

Identifying vulnerability and those who can help

• If you aren’t clear about the existence, type or impact of a person’s vulnerability, then you will need expert advice. A psychologist can provide a cognitive and/or capacity assessment, which can highlight the need for an intermediary or advocate. The President’s Guidance updated in November 2025 states that lay advocates are on ‘all fours’ with intermediaries and where the term intermediary is used, it is taken to include lay advocates. However, they do fulfil very different roles.
• Neither however are expert witnesses and therefore not appointed under Part 25 – use Part 18 FPR. But your approach should still be the same – the test will be one of ‘necessity’ rather than ‘nice to have’.
• An intermediary is a communications specialist whose function in family proceedings is to communicate and explain questions asked of vulnerable people or answers given by them. Intermediaries usually come from a background with a degree or relevant experience in speech and language or social care.
• A lay advocate provides practical and emotional support to help a vulnerable person navigate the court process and participate effectively by building rapport, managing anxiety, or even more practical help such as assisting with transport. Most come from independent advocacy organisations. There is no single, formal national qualification to become a ‘lay advocate’ and it is not regulated.
• HMCtS will fund intermediaries and advocates if no alternative but I suspect this is going to become an increasingly more difficult route.
• I have been using the following templates in orders for the last two years and I hope they are still accurate!
• Funding of intermediary
  • XX must by 4.00pm on [date]  ask Communicourt to provide a quotation for the supply of services in the form of a preliminary assessment to include necessary preparative work and, if required, intermediary services and necessary preparative work for all future hearings and any final hearing and the following directions apply:
  • the quotation must be sent to HMCTS for the attention of the court manager forthwith.
  • HMCTS must confirm acceptance of the quotation and payment of intermediary services within seven days after receipt of the quotation.
  • Communicourt must file and serve a preliminary assessment four weeks after confirmation of payment of services by HMCTS and shall attend, if required, the subsequent hearings.
  • any default in compliance with these directions shall be brought to the attention of the case management judge on 48 hours’ notice to all parties.
  • Should XX be assessed as requiring intermediary services, an intermediary shall have permission to accompany XX at conferences with her legal team, the costs of which are to be borne by XX’s Legal Aid certificate

• Funding re advocate
  • Having considered the psychological reports of XX by YY and it being considered necessary for XX to have the services of an advocate during any proceedings, the Court has approved the appointment of ZZ advocacy service to provide an advocate for XX
  • The costs of the advocacy service shall be funded as follows
    • By HMCTS for all attendance at court hearings, to include travel
    • By XX’s public funding certificate for all legal meetings and conferences at times conducted between XX and XX’s representatives outside of court hearings, the court determining such cost to be a necessary and proportionate disbursement the cost being £40 per hour plus VAT and mileage at £0.45 per mile
    • By the local authority for all non-legal meetings at times conducted by the  local authority the cost being £40 per hour plus VAT and mileage at £0.45 per  mile
  • Permission is given to the solicitors for XX at their discretion to  disclose the case papers to any advocate.

What’s the legal test to apply for an intermediary/advocate?

• A psychologist must be deemed ‘necessary’ by the court under Part 25 of the FPR. But what is the test to appoint intermediaries (and advocates)? This was determined in Re M (A Child: Intermediaries) [2025] EWCA 440 Peter Jackson LJ.
• The court must ‘steer a path between the evils of procedural unfairness to a vulnerable person on the one hand and waste of public resources on the other’
  • The court will exercise its judgment within the framework of Part 3A of the FPR, which require very little elaboration.
  • The test for appointment is that it is necessary to achieve a fair hearing – decisions are person and task specific. There is no need to overlay the test of necessity with concepts of ‘rarity’ or ‘exceptionality’.
  • Efficient case management is needed; there must be early identification of vulnerability where it exists.
  • The court can authorise intermediary assistance outside the court building but this may be unnecessary in a less pressured environment so the court should give this separate consideration
  • The mandatory checklist in rule 3A.7 is an essential reference point
  • The application must have an evidential basis, usually a cognitive report and if authorised an intermediary assessment. Can be evidence from social worker or guardian.
  • The court will consider other participation directions which may be effective to secure fairness – intermediaries cannot be appointed on a ‘just in case’ basis.

Be aware of court disenchantment

• My own experience of intermediaries and advocates is not uniformly positive. I can think of only a handful of cases where I saw an intermediary intervene to challenge the way a question was put and suggest an alternative. That may of course have been because everyone had honed their cross examination perfectly but I am a little sceptical about that.
• I have had even less positive experiences of advocates – primarily because its been difficult to get the same advocate for each hearing and I struggle to see how a party can gain a rapport with someone they meet for the first time at a final hearing.
• However, the concerns are going beyond this. At least two judges now in the Bristol CJC have expressed serious concerns about the instruction of advocates – one Judge having to intervene when a party became distressed as the advocate didn’t notice. The Judge also commented that the advocate did not take a single note and the Judge queried therefore how effective this advocate could be in explaining what was going on during the break.
• I am seeing more frequently Judges push back on applications which lack detail and focus – for example requiring clarification from the expert cognitive assessor as to why a lay advocate is required referring the assessor to FPR Part 3A and Practice Direction and the relevant principles arising from the case law/guidance. In one case a Judge directed further investigation of the availability of a trainee solicitor or family friend to support the mother.
• I suspect as resource implications bite even harder, it’s going to get even more difficult to steer between the often competing aims of preventing unfairness and preserving public funds.

LAST BUT NOT LEAST

• Consider the impact on YOU. Navigating and worrying about other people’s vulnerabilities is hard – professionals may experience vicarious trauma, compassion fatigue and burnout, feeling you are part of a system that is doing harm. Practitioners should watch out for ourselves and each other.