Oxfordshire County Council v A Mother & Ors

I am concerned with two children X and Y. They are the subject of care proceedings brought by the Local Authority. Their Mother is A. The father of X is believed to be C but he has played no part in these proceedings. The father of Y is B. The case was listed before me today for an Issues Resolution Hearing. I am publishing this judgment to deal with one discrete aspect of the hearing which was the application for the appointment of an Intermediary for the mother for the final hearing.

The Local Authority’s position supported by the Guardian was that care orders should be made, and a placement order made. The Placement Order application had not been issued due to the Agency Decision Maker not having completed the necessary paperwork due to illness. The Threshold covered the risk of sexual harm from the father and the mother’s inability to protect them, exposure to domestic abuse and risks arising from the diagnoses of the mother and father in relation to personality disorder and substance misuse. It was agreed at court today.

Prior to the hearing today the father had accepted that care and placement orders should be made. At the hearing today the mother also accepted that she could not realistically oppose the making of care and placement orders but she did not consent to the making of them and so for the purposes of the placement order the court would have to be satisfied that her consent should be dispensed with. The father was not named on the birth certificate and so does not have Parental Responsibility. Because the Placement application had not been issued a final hearing would be required to allow the court to consider and make final care and placement orders.

Proceedings in respect of X commenced in August 2023 and in respect of Y in October 2023 shortly after her birth. In the course of the proceedings both the mother and the father were assessed by Dr Jonathan Dowd a Consultant and Registered Forensic Psychologist. He prepared 2 reports in respect of the mother; in January 2023 and in December 2023. The first was part of pre-proceedings work and the second was during the currency of the proceedings. In those assessments extensive psychometric tests were undertaken including the Wechsler Abbreviated Scale of Intelligence. On both occasions the tests showed the Mother functioning in the low average range of adult cognitive capacity and as she was in the normal range of functioning it was not indicated that the full Adult Intelligence testing was required. Following the psychometric testing extensive clinical interviews took place about 10 days later. Dr Dowd concluded that Borderline Personality Disorder, substance misuse and depression were features of her presentation. He considered she understood the concerns about her parenting but lacked insight into issues of risk.

On 10 January 2024 a direction was given for an Intermediary assessment of the mother and father. Dr Dowd’s report on the father identified his cognitive functioning as falling with the in the borderline range but not within the learning disability range. An Intermediary Assessment was obtained from Communicourt and on 11 June 2024 the Mother’s solicitors issued a C2 application seeking the appointment of an Intermediary. It stated

The report from Communicourt is a lengthy one following the template that seems usually to be adopted. The author does not seem to have been aware of the reports of Dr Dowd and did not have access to them or even a summary of the results of the Psychometric testing. It will usually be critical that an Intermediary is provided with an expert report which addresses the cognitive abilities of the party and any issues which bear upon their vulnerability as these are specific considerations for the court in determining what participation directions are necessary and are clearly relevant to an intermediary assessment of their ability to participate in proceedings or give evidence. The report refers to Mother’s account of having a number of possible diagnoses but says”… I have not seen any expert documentation, including medical records to corroborate her account.” She met with Mother at her solicitor’s office and spent 1 hour and 10 minutes conducting the assessment and observing her behaviour and communication skills. The report suggests they covered an awful lot of ground in that time in terms of accounts and testing. The report identified a number of areas where the mother’s abilities were diminished in particular the mother’s ability to concentrate, to identify key words in long sentences and in her understanding of complex vocabulary or figurative language. It also highlighted her ability to understand more complex concepts and her ability to speak up for herself for instance needing a break. The report offered advice on how those limitations could be managed by those interacting with the mother and gave particular advice on how her giving evidence could be managed.

The Recommendation was as follows

In subsequent sections the author makes clear she is recommending Intermediary support for

Whilst the report identifies some general strategies for assisting the mother it does not consider all the other tools available including to the solicitors and counsel (including her own) to address the identified diminution in her ability but proceeds on the basis that an intermediary will be required for all purposes.

Although Dr Dowd was not specifically instructed to report on her cognitive functioning and on her ability to participate in proceedings or to give evidence the contents of his reports including the clinical interviews and the psychometric testing which place the mother in the low average range of cognitive functioning do not suggest that the mother has a significantly compromised ability to understand or to participate in stressful processes provided some measures are taken to recognise the moderate limitations she has.

She has reconciled with the Father of Y and so the domestic abuse presumptions in FPR3A.2A would apply but as she attended the hearing with the Father of Y and they are living together any participation directions linked to domestic abuse do not appear to be appropriate. In so far as participation directions may be required arising from vulnerability within the meaning of FPR3A.4 and 3A.5 are concerned I do not consider that the recommendation referred to at para 6 above in any sense gets close to establishing that an Intermediary is necessary to assist the mother to participate in the proceedings or to give evidence. It may be that her participation may be improved by having a specialist in communication assist her but having regard to the limited range of issues in which the mother’s capacity is diminished I am more than satisfied that her solicitor and counsel would be able to ensure she was able to participate in the proceedings fairly by taking account of the intermediary advice as to avoiding the use of figurative language, complex vocabulary and sentences and otherwise. Those sorts of adaptations of language and approach are part and parcel of the skill-set of solicitors and advocates. Taking sufficient time to go through evidence, to explain more complex aspects of the expert evidence, taking time to establish that Mother understood the allegations and to take instructions are also part of the usual skills of lawyers; particularly those who have for instance undertaken the professional organisations training on working with vulnerable parties and witnesses. I am not even sure in this case that an Intermediary would be desirable still less necessary. The relationship of trust which is built between solicitor and client and counsel and client has an intrinsic value and the introduction of an intermediary may not always be a help unless it really is necessary.

In this case I am not satisfied that an intermediary is necessary to assist the mother. Her ability to participate may be reduced to a limited extent by her diagnoses – less so by her cognitive functioning, but any deficit can be addressed by appropriate work by her legal team and by the court. The attendance of her solicitor at court at the next hearing or Mother’s attendance at her solicitors’ office if the hearing is remote it will provide a significant measure of support. Although it does not fall for consideration now that the outcome is not contested, I do not consider that an intermediary would likely have been necessary to assist in the Mother giving evidence. Again, the adoption of breaks and the advice identified in the Intermediary report and the deployment of the skills contained in the Advocates Gateway Toolkits would likely have been more than sufficient to enable the mother to give her best evidence.

The application for an intermediary is therefore refused.