“It is clear that the failure to recognise and accommodate neurodivergence in the Family Justice System leads to parties, witnesses and children not being able to participate fully. Equal access to justice is fundamental to a functioning and fair system.”

Those are the words of the President of the Family Division, Sir Andrew McFarlane who encouraged all practitioners to understand an individual’s needs to enable better participation in family proceedings. The Family Justice Council has very helpfully published guidance for practitioners in the family justice system working with neurodivergent court users.

This guidance is vital and welcomed given that it is estimated that 15% of the population are neurodivergent due to the way that their brain has developed.

Neurodivergent conditions can include autism, attention deficit hyperactive disorder, dyslexia, dyscalculia, dyspraxia, dysgraphia and Tourette’s syndrome. A person can often have more than one diagnosis.

The guidance provides a framework for practitioners which sets out a number of steps for a court professional to consider. These include: -

Step 1 - Looking out for neurodivergence

Lawyers should consider at an early stage about whether an individual could be neurodivergent. This includes obtaining an existing diagnosis and determining whether additional information is required to include an expert assessment to better understand the individual’s needs, any barriers and whether any additional support is required.

The guidance provides a list of questions to assist with identifying whether a person may be neurodivergent however should not be used as a screening or diagnosis. The suggested questions are merely a helpful starting point, and it is recommended that the exercise should be undertaken in a calm space without distractions.

Examples of some of these questions include -
1. Did you ever receive extra help at school?
2. Did you struggle with reading, writing or maths?
3. Do you receive PIP or DLA?
4. Do you get worried by change?
5. Do you find noisy and crowded spaces difficult?
6. Do you feel anxious for long periods?
7. What do you feel like when you go to a new environment?

Step 2 - Is further information required?

If there is an existing diagnosis or it is felt that further information is required which may prompt further assessment, then professionals will need to consider what further information is required.

This could include -
a. An intermediary assessment
b. Formal assessment to diagnose whether someone could be neurodivergent and what additional support they require as a result
c. Discussions with friends and family with consent
d. Discussions with consent from health, education or social services
e. A cognitive and capacity assessment from a psychologist

Step 3 - What barriers is this person facing?

Identify what barriers an individual could face in the Family Justice System and discuss this list with the individual to ascertain their comments. This should include barriers when attending court generally, attending court hearings, giving evidence and any barriers encompassed during meetings with solicitors, counsel or other professionals.

Step 4 - Consider what adjustments are needed to overcome these barriers?

It is important to recognise that a one size fits all approach will not always work for individuals and consideration will need to be given to an individual’s needs. Adjustments to the environment, communication, structure and timing can all be considered at different stages including when away from court, at court generally, during hearings and when a person is giving evidence.

Examples of adjustments include -
• Using a certain font in correspondence
• Allow more time to consider information and any questions to be asked
• Communication via email rather than telephone
• What colour paper letters should be sent on
• Removing a loud clock
• Adjust lighting
• Use of a fidget toy
• Regular breaks and discussions at a set time of the day
• Sticking to times as much as possible
• A party being able to type their answers when giving evidence

Step 5 - Applying for reasonable adjustments

The list of adjustments should be shared with the individual for their feedback and then this can be shared with the other parties and the Court. If there is any disagreement, then the Court can be asked to provide judicial oversight if this is necessary.

Step 6 - Timing

Any adjustments must be kept under review throughout the course of proceedings and be considered at the earliest stage including the start of the pre-proceedings. It is essential that adjustments are reviewed at a ground rule hearing before any person gives evidence in family court proceedings.

Conclusion...

At Timms Solicitors, we have extensive experience of working with individuals who have neurodivergent needs, and we are able to identify what additional support and adjustments are required at any early stage to assist you with your case. If you require any further information do not hesitate to contact me on m.knight@timms-law.com or 01283 561531

For more information about Family Law, visit our website here.