After almost two years work, the Family Justice Council (FJC) has drawn together existing regulatory frameworks and set out best practice for legal professionals working with clients who are neurodivergent and others they come into contact within the family justice system. The guidance aims to improve access to justice and help provide fair treatment for neurodivergent family court users, identify potential barriers, address access to justice issues, and the ways in which the family justice system accommodates neurodivergence in family law cases.
After almost two years work, the Family Justice Council (FJC) has drawn together existing regulatory frameworks and set out best practice for legal professionals working with clients who are neurodivergent and others they come into contact within the family justice system. The guidance aims to improve access to justice and help provide fair treatment for neurodivergent family court users, identify potential barriers, address access to justice issues, and the ways in which the family justice system accommodates neurodivergence in family law cases.
If you have concerns about your family law situation and you feel you need legal advice, contact specialist family solicitor Helen Miller of Stowe Family Law. She is an exceptionally skilled family law expert with over 20 years’ experience, and Managing Partner at this well known specialist family law firm.
Firstly, what do we mean by neurodiversity?
The term was introduced in the 1990s to describe the differences in which individual’s brains work and the way they present. This includes the way people think or process information, how they organise their behaviour, and their ability to perform certain tasks.
Around 15% of the population are neurodivergent because of the way their brain has developed, and can include specific neurodevelopmental conditions such as autism spectrum disorder or wide ranging learning disabilities.
The way in which someone’s neurodivergence is expressed varies and they often develop ways of coping with or managing the impact of their condition. Masking – when someone uses strategies to make signs of their neurodivergence less obvious to other people – can often be a difficult and exhausting process. In addition, some individuals may not identify as being neurodivergent, some may have been diagnosed in childhood or as an adult, and others may believe they have certain traits but are yet to be diagnosed or assessed.
Failure to recognise and address neurodivergence within the family justice system can lead to parties, witnesses, and children not being able to fully participate in proceedings and mediation. And, in turn, this may lead to unfairness in outcome.
Considerations when a party is neurodivergent
Court proceedings are stressful for most people, and the additional issues that exist for those who are neurodivergent are huge. Individuals who are neurodivergent may become anxious which is exacerbated if adjustments are not available and the attitudes of others are negative or dismissive. Cross-examinations can be lengthy, rigorous and stressful, and when giving evidence, witnesses are often referred to various statements and other written evidence, often being asked to read and process information quickly.
Those who are neurodivergent may struggle to follow proceedings and remain engaged which may result in them becoming flustered or agitated. Such obstacles carry the risk that an individual might not be able to give a best account of themselves and their evidence, which may undermine the fairness of the process.
Appointment and role of an intermediary
Under the Family Procedure Rules 2010, the court has the power to make adjustments for neurodivergence in family proceedings for those who have additional needs or are facing barriers because they are classed as vulnerable. This is to ensure that fairness is maintained throughout the process and ensures that parties are placed on an equal footing. In addition, the local authority and CAFCASS must both follow the Equality Act 2010, which means that where necessary, reasonable adjustments should be made.
Part of providing support could see the appointment of an intermediary. The family procedure rules states an intermediary’s role is to:
- Communicate questions put to a witness or party
- Communicate to any person asking questions the answers given by the witness or party in reply to them
- Explain such answers or questions so far as is necessary to enable them to be understood by the witness or party or by the person asking the questions.
The court authorises the appointment of an intermediary and the court service will fund their attendance at court. The Legal Aid Agency may fund an intermediary to cover sessions between a party and their representative outside of court attendance, such as during solicitor or mediation meetings. The court is clear that intermediaries should not be appointed on a “just in case” basis, and it will be rare for them to be appointed for a whole trial. When deciding whether to appoint an intermediary, the court considers the following:
- The circumstances of the individual and also the facts and issues in the case
- Intermediaries should only be appointed if there are “compelling” reasons to do so
- The judge must consider whether there are other adaptations which will sufficiently meet the need to ensure the party can effectively take part in the trial.
- The application must be considered carefully and with sensitivity
- If every effort has been made to identify an intermediary but none can be found, it would be unusual for a case to be adjourned because of the lack of one.
- If no intermediary is appointed, the court must ensure effective participation; this includes having breaks in the evidence, ensuring evidence is obtained in very shortly phrased questions and that witnesses provide answers in short sentences.
How are needs and adjustments identified?
Solicitors and other legal professionals should always consider whether someone may be neurodivergent. If there is no diagnosis, the first step a solicitor or legal professional may take is to ask the following questions in order to determine whether someone may need additional support in a court setting:
- Do you receive/have you ever received PIP or DLA?
- Have you been referred for a Community Care Act assessment? If so, what for and what was the outcome?
- Have you ever received any extra support from health services, social services, or charities?
- Did you struggle with reading, writing, or maths in school?
- Did you receive extra help in school?
- Do you find it difficult to concentrate or pay attention?
- Are you a slow or fast reader?
- Are you able to understand and remember what you read?
- How easy do you find writing by hand?
- Do you find noisy and crowded spaces difficult?
- Do you get worried by change?
- Do you feel able to express your thoughts easily?
- Do you ever feel like you have too many thoughts at once?
- What do you feel when you go into a new environment?
- How do you find talking to people you don’t know?
- Do you ever struggle with understanding turns of phrase, sayings or metaphors?
- Do you struggle with numbers or telling the time?
- Do you have any problems with coordination or balance?
- Do you have any problems when trying to speak?
- Do you feel anxious for long periods?
- Have you ever been diagnosed with any psychological or mental health condition?
- Have any of your family members been diagnosed with any psychological or mental health condition?
Questions should be asked sensitively and conducted at a manageable pace for the participant. A solicitor should explain that some or all of the information gathered may need to be shared with the other parties, professionals, and the court, and obtain written consent if necessary.
It is possible that further information may be needed from health, education, social services, friends, family or carers. Such requests must include obtaining written consent from the person giving the information. All these actions are considered to be an essential part of the process of being able to put reasonable adjustments in place and prove they are essential in maintaining fairness.
What adjustments are available?
There are a wide range of adjustments that can be made. The right adjustments will always depend on the person’s individual needs as opposed to any label or diagnosis. The majority of adjustments are straightforward and simple and will already be familiar to those working in the family justice system. The three types of adjustments most commonly needed are:
- Adjustments to communication (contact by email rather than phone, using shorter sentences or questions, for example)
- Adjustments to the environment (such as adjusting lighting, allowing the use of a fidget toy or stress ball, removing a loudly ticking clock)
- Adjustments to the structure and timing of different aspects of the process. For example, the court day or client conferences, taking regular breaks, sticking to a pre-agreed visual/written timetable, providing photographs of the lawyers and other professionals alongside a description of their role in the proceedings.
These are then broken down into four scenarios:
- Adjustments required away from court
- Adjustments required at court generally
- Adjustments required during court hearings
- Adjustments required when giving evidence
There is likely to be an overlap in the adjustments required in each of the scenarios, and the solicitor will draw up a list of the proposed adjustments. The person who is neurodivergent should be offered the chance to consider the draft list and make any changes or ask questions about it. Once the person is happy, the list can be shared with the court and other parties. The court can be asked to adopt the proposals and adjudicate on any measures which cannot be agreed.
Applying for reasonable adjustments
There is no standard format for a request for reasonable adjustments to be made to the court, although they should be considered at the earliest stage of proceedings or at the start of any pre-proceedings process. If adjustments are made, they must be kept under review throughout the course of the case to ensure they continue to meet the individual’s needs.
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