Vulnerable Clients within Financial Remedies: A Brief Guide

Introduction

Within family law, the majority of guidance on protection of vulnerable parties comes from public and private children law. Practitioners in those fields routinely deal with parties who live with complex mental or physical health conditions, are victims of domestic abuse, or have other forms of vulnerability that can, for example, arise due to neurodiversity (research shows neurodivergent individuals are over-represented in court-users compared to the general population[[1]]) or from medical conditions. The influx of statutory guidance in early 2025 was prompted in part by a need to formalise guidance in reported private and public law children cases, for example the Practice Guidance on The Use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court.[[2]]

In contrast, the financial remedies court has largely been silent in case law on how to properly protect vulnerable parties of all kinds in this type of proceedings. Resolution’s report on Domestic abuse in financial remedy proceedings[[3]] is the first specific financial remedies report known to the writers that contains recommendations to protect those who are vulnerable by virtue of their experience of abuse. However, its scope is such that it does not deal with vulnerability in other forms.

This is notwithstanding that practitioners in the financial remedies field also need to be equally as aware as our children law (and other) counterparts of the impact of vulnerability in a party’s ability to participate in proceedings and to give evidence, the mechanism for addressing this and the potential harm of not doing so. This article highlights this issue and provides a concise guide on this issue.

The basics

Why is this important? The ability to effectively participate in proceedings allows fundamental human rights to be upheld. The process must be fair. Awareness and implementation of procedural safeguards help a party to understand what is happening in the litigation and alleviate potential difficulties faced by vulnerable parties in giving evidence. Before looking at those mechanisms, we set out a reminder of the basics.

The meaning of vulnerability: given the varying nature of vulnerable clients, there is no strict definition within the Family Procedure Rules 2010 (SI 2010/2955) (FPR) of vulnerability; as is stated in Re M (A Child: Intermediaries) [2025] EWCA Civ 440 ‘there is a wide spectrum of vulnerability’. However, the court acknowledges that children are vulnerable[[4]] and those who have suffered or are at risk of suffering domestic abuse.[[5]] In considering measures to assist such vulnerabilities or other (unspecified) forms of vulnerability it lists at FPR 3A.7 various broad factors the court must consider including physical disability or mental disorder or age, maturity and understanding or the party’s domestic circumstances.

It is the joint duty of the court and the parties to identify someone who is vulnerable (by reference to the factors at FPR 3A.7) at the earliest opportunity.

Neurodiversity: a broad, commonly used definition[[6]] is as follows:

‘neurodiversity is a term to describe the natural differences across the population in the way people’s brains work and the way they may present. This includes the way people appear to think or process information, how they organise their behaviour, and their ability to perform certain sensory-motor tasks.’

Protected parties: this means ‘a party, or an intended party who lacks capacity (within the meaning of the 2005 Act [Mental Capacity Act 2005]) to conduct proceedings’ (FPR 2.3).

Participation directions: are measures a court can direct to assist a party’s participation in proceedings. This is not solely limited to measures to assist a party to give evidence, and it can include directions for outside court hearings, such as conferences between a party and their legal team.

Intermediaries: defined in the rules (FPR 3A.1) as 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;’

Ground rules hearings: when a court has decided that a vulnerable/protected party/witness should give evidence a ‘ground rules hearing’ should take place prior to any hearing where evidence should be given. This does not need to be a separate hearing. At the hearing ‘participation directions will be given:

‘(a) as to the conduct of the advocates and the parties in respect of the evidence of that person, including the need to address the matters referred to in paragraphs 5.3 to 5.7, and

(b) to put any necessary support in place for that person.’ (FPR PD 3AA, para 5.2)

Guidance and law

In addition to the various case law and guidance in respect of domestic abuse victims and their vulnerabilities (which is not repeated here), the majority of the other guidance and case law focuses on the use of intermediaries in proceedings involving vulnerable parties, as this question inevitably will be raised at some stage where a party’s vulnerability is such that there is a concern by the legal team as to understanding and ability to participate effectively.

First, there is the Practice Guidance by Sir Andrew McFarlane, President of Family Division, on The Use of Intermediaries, Law Advocates and Cognitive Assessments in the Family Court dated 23 January 2025. Key points from that guidance are as follows:

• There are three elements that often arise in cases involving vulnerable witnesses – the role of lay advocates (non-professional individuals who help vulnerable parties), intermediaries (communication specialists), and cognitive assessments. The former two are similar roles so dealt with as one in this guidance, under the term ‘intermediary’.
• This issue is considered in the context of the court’s approach when FPR Part 3A regarding vulnerable witnesses applies. Any type of vulnerability is relevant – for example, the impact of neurodiversity, domestic abuse, disability, substance abuse, etc. FPR Part 3A imposes a duty on the court to consider the party’s ability to participate and give evidence. Application of this often leads to participation directions being made, for example, provision of screens, regular breaks.
• There is specific reference to intermediaries in FPR 3A.1, where it is recorded that such assistance can help a party participate and give evidence.
• This guidance by the President is issued because:
• the concern that intermediaries are used when not strictly necessary, for example, as a safety blanket for solicitors; there is not enough use or consideration of the Advocate’s Gateway Toolkits; guidance from case law regarding the question of when intermediary assistance is justified needs ratifying;
• not enough is known about how to apply for intermediary assistance, for example, solicitors can treat this as a Part 25 application for expert assistance when this is not correct. There is a need for procedural guidance;
• the cost involved in intermediary assistance has risen enormously between 2019 and 2024;
• there is significant delay in proceedings caused by increased use of intermediaries. This is detrimental.

However, this guidance has since been superseded (and in parts contradicted) by the leading Court of Appeal authority handed down on 10 April 2025 in Re M (A Child: Intermediaries) [2025] EWCA Civ 440. This is key reading for any practitioner considering the need for an intermediary. This was a public law case where the mother had diagnoses of ADHD and Asperger’s syndrome, and presented with cognitive difficulties. The first instance court refused the mother’s application for an intermediary, reiterating the test of ‘necessity’ to ensure participation and allow a fair trial. The mother’s application was granted on appeal, allowing her an intermediary at least for the hearings until the end of the fact-finding process.

In a change to the themes of caution and overuse in earlier case law, the court held that additional concepts such as ‘rarity’ or ‘exceptionality’ should not be added to the test of necessity. It specifically addressed Lieven J’s guidance in an earlier judgment, West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam) saying:

‘There is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality. Frequency is not a test, and nor is exceptionality. Similarly, the introduction of tests of “compelling reasons”, or of adjournments for lack of an intermediary being “unusual” or “very unusual”, beckon the court to short-circuit its consideration of the evidence in the individual case.’

It then addressed Williams J’s guidance in Re X and Y (Intermediary: Practice and Procedure) [2024] EWHC 906 (Fam) saying ‘These projections, including references to “very rare” or “rare” cases, are not a substitute for a straightforward application of the rules’. Lastly, it addressed Williams J’s guidance in Oxford County Council v A Mother (Intermediary Appointment Refused) [2024] EWFC 161, with which it was content, saying ‘This conclusion was reached by applying the unvarnished test of necessity’. It then expressed concern about paragraphs 10 and 12 of the President’s Practice Guidance on intermediaries. These talk about it being rare for an intermediary to be needed for the entirety of the evidence or the whole hearing. The court has reservations about this element of the guidance because of its framing regarding the rarity point. In summary, the Court of Appeal stated:

‘Any perception on the part of the senior family judges that intermediaries are being appointed too freely must be treated seriously. But as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.’

There is a helpful Annex at end of the judgment containing relevant parts of FPR Part 3A and PD 3AA.

Whilst not a citeable authority, in the context of financial remedies and vulnerable parties, there is the reported case of ND v LD (Financial Remedy: Needs) [2022] EWFC B15. In this case the unrepresented husband’s mental ill-health was a cause of considerable concern for the court. The court listed a ground rules hearing, which included consideration of the appointment of a McKenzie Friend (the husband had proposed for the parties’ adult daughter to be his McKenzie Friend which was opposed by the wife and such issue therefore formed part of the ground rules hearing in this particular case), the mode of the final hearing and any other participation directions. The judgment set out in detail that the participation directions were put in place, including allowing the parties to give evidence remotely, allowing regular breaks, flagging up topics during cross-examination, and also for outside the court hearing in allowing the husband an opportunity to have a health/support worker to assist him when reading the written judgment.

The most recent update to the discussion on intermediary assistance can be found in the now updated President’s Guidance, published 7 November 2025.[[7]] This ratifies the Court of Appeal guidance in Re M. It takes into account the concern about the increasing number of intermediary instructions and makes clear the importance of considering other forms of support that may lessen the need for so many intermediary appointments.[[8]] Importantly, it expressly rejects the earlier decisions at High Court level, advising practitioners to follow the Re M test of necessity[[9]] and to use the checklist in FPR 3A.7 that ‘is an essential reference point to ensure that the factors relevant both to the individual and to the proceedings are taken into account’.[[10]] In terms of procedure, paragraph 14 of the updated Guidance is important reading on when an ‘intermediary preliminary assessment’ is needed (essentially, when there is insufficient material to determine whether a vulnerability exists) and the court’s role in making this decision – a party should not commission their own preliminary assessment without prior leave of the court.

Key considerations

As noted above, there is a duty on the court, the parties and the legal representatives, to identify if someone is vulnerable at the earliest opportunity. This should be treated as a collaborative process. This will enable parties and the court to ascertain whether medical evidence, including capacity assessments (addressing evidence and capacity to litigate), is required and whether there should be a ground rules hearing. As is noted above, participation directions may be required throughout the proceedings, not just when the vulnerable party is to give evidence. This includes consideration of whether any measures should be in place at the FDR, such as conferences, negotiating and in how any indication is delivered by the court in addition to how the hearing should itself be conducted. Whilst FPR 3A.8 provides a list of measures, supplemented by FPR PD 3AA, it is important to ensure that all participation directions are tailored for the individual party. Reported cases, capacity assessments and other medical evidence can assist in this, including intermediary assessments, having regard to fact-specific requests, for example in ND v LD (Financial Remedy: Needs) the court and counsel initially referred to the husband as ‘sir’ upon his specific request.

For advocates and legal representatives, self-evidently it is incumbent on them to adapt for the vulnerable party, to include how instructions are taken (if the vulnerable party is their client), to how cross-examination questions are put (if they are the opposite party), bearing in mind the measures and any evidence which is provided. Further, the Advocate’s Gateway Toolkits can also assist in providing legal representatives with general good practice guidance for dealing with vulnerable clients.

[[1]]: Family Justice Council, Guidance on Neurodiversity in the Family Justice System for Practitioners, published January 2025.

[[2]]: Published 23 January 2025.

[[3]]: Published October 2024.

[[4]]: FPR 3A.2(1).

[[5]]: FPR 3A.2A.

[[6]]: Term recommended by GOVUK 2021 cited in Family Justice Council, Guidance on Neurodiversity in the Family Justice System for Practitioners.

[[7]]: Updated Practice Guidance by the PFD: The use of Intermediaries, Lay Advocates and Cognitive Assessments in the Family Court, published 7 November 2025.

[[8]]: Updated Practice Guidance, paragraph 4.

[[9]]: Updated Practice Guidance, paragraph 8.

[[10]]: Updated Practice Guidance, paragraph 12.