Neurodiversity in the family justice system: what does the guidance say?

Neurodivergence is an umbrella term and can include Autism, ADHD, Dyslexia, Dyscalculia, Tourette’s Syndrome, Dyspraxia and Dysgraphia as well as other conditions. Neurodivergent people often think, process information and interact with the world in a way which is different to people who are not neurodivergent. Court proceedings can be stressful for anyone but the process may cause additional anxiety for neurodivergent people, for example they may struggle to follow proceedings and remain engaged, or experience difficulties giving evidence which may mistakenly lead to adverse inferences being drawn. Additionally:

• Lack of awareness of neurodivergence can lead to misunderstandings, stereotypes and stigma which can lead to unfairness and discrimination.
• Those with neurodivergence may have altered communication styles or different preferences or needs in social interaction and presentation which can impact on participation in the process.
• There may be additional challenges to participating in proceedings including sensory issues, anxiety, difficulties controlling emotions or inhibiting responses, difficulty processing information or focusing, tiredness and the impact of mediation wearing off.

The new FJC guidance draws together the existing regulatory framework and sets out best practice, in order to help identify potential barriers, to recognise and to accommodate neurodivergence within family proceedings and dispute resolution. It highlights that navigating the family justice system can be challenging for anyone but especially so for neurodivergent people and often small changes can have a big impact. 

The guidance reiterates that parts 3A and PD3AA of the Family Procedure Rules 2010 provide a mechanism for making adjustments for neurodivergence to allow full participation in proceedings, which could include the appointment of an intermediary to assist with putting questions or communicating answers given in evidence. Furthermore, the guidance sets out a framework which can be used to identify the needs and adjustments of any neurodivergent person participating in the family justice system, as well as identifying six steps for family practitioners to work through in each case, as follows:

1. Looking out for neurodivergence. Obtain any existing diagnosis or, where there is no diagnosis but neurodivergence may be an issue, consider utilising the checklist provided to identify where someone may be neurodivergent.
2. Ascertaining if further information is needed. This may include formal assessments, information from health, education or social services or information from friends, family or carers.
3. Identifying the barriers faced by this particular person. Use the information to identify, discuss and try to agree any potential barriers at court, away from court, during a hearing and when giving evidence.
4. Determining the adjustments needed to overcome these barriers. This could include adjustments to communication, environment, or the structure or timing of different aspects of the process. A list of adjustments can then be shared with the parties and the court.
5. Applying for reasonable adjustments. There is no standard format for a request for reasonable adjustments but HMCTS guidance is available.
6. Considering the timing of adjustments. Consider adjustments at the earliest stage of proceedings and keep them under review.

The guidance details useful resources for family law practitioners, including toolkits for advocates questioning neurodivergent witnesses and HMCTS guidance on going through security at court, who’s who in the family court and what to expect when coming to court.

Another key resource for anyone dealing with neurodivergence in the family justice system is the FLANC website (Family Law Advice for the Neurodivergent Community) which pulls together toolkits and other resources which can be used to assist family practitioners working with neurodivergent children and families. FLANC seek to support the needs of neurodivergent people and campaign for change, with practical changes including:

1. Training for family law professionals to increase awareness of neurodivergence and the impact of this.
2. Adoption of better practice in relation to reasonable adjustments at court and away from court.
3. Changes to court forms to identify the needs of neurodivergent people at the outset and to keep these under review as proceedings progress.
4. Use of standard documents so that needs can be readily understood, such as the All About Me Document which can be found on the FLANC website and which provides a tool for those working with neurodivergent people to better understand their needs and how to work with them.
5. Better communication between the family justice system and other areas of the justice system or sectors which deliver services to neurodivergent people such as health and education.

Work is also underway by FLANC to produce a toolkit to assist access to non court dispute resolution for the neurodivergent community.

The increased awareness and availability of resources to support neurodivergent families is a welcome development. As the President of the Family Division, Andrew McFarlane, acknowledges, “understanding an individual’s needs leads to better participation, and more effective justice…..with relatively light adjustments, (we) can improve participation and outcomes for children and families”.

The Family Justice Council guidance can be read in full here.