Empowering neurodivergent individuals in the family law system

Family law proceedings can be daunting for anyone, but for neurodivergent individuals, the legal landscape can seem particularly challenging. This blog will explore the practical ways neurodivergent individuals can be supported in family proceedings to enable them to engage effectively and give their best evidence.

From early identification of neurodiversity, third-party support, and court instructions to better accommodate neurodivergent individuals according to their particular needs we hope to see an increasingly inclusive legal landscape where neurodiversity is both recognised and embraced.

Early Identification of neurodiversity in family proceedings

The Family Law Procedure Rules Part 3A and Practice Direction 3AA  impose duties on the court and provide measures to assist vulnerable individuals (whether parties or witnesses to the proceedings) to effectively participate in the proceedings. An area of vulnerability that can often go unaddressed in family proceedings is neurodiversity.

A recent study estimated that 50% of neurodivergent individuals are undiagnosed. Supporting those with neurodiverse conditions in the courts begins with early identification of any party or witness who may be vulnerable due to their condition. Family law practitioners should work with clients to identify this as soon as possible and flag it to the court as early as possible given that the court has an obligation to take this into account. This will help ensure the individual can participate in the proceedings without the quality of their evidence being diminished or being put into fear or distress. In some circumstances it may also be possible to obtain the court’s permission to instruct an medical expert to assist with this process.

The factors that are most relevant to neurodivergent individuals that the family courts should consider in determining whether an individual is vulnerable include:

• whether the individual has significant impairments to their intelligence or social functioning;
• the individual’s maturity and understanding; and
• any other characteristic relevant to a participation direction (an instruction to help the individual participate) that the court might make.

With most neurodivergent conditions existing on a spectrum, these factors risk failing to identify neurodiverse people as vulnerable. Conditions like autism and dyslexia may not be apparent as ‘significant impairments’ yet can significantly affect one’s ability to cope in court. For example, a person with autism may cope with day-to-day social situations but struggle to respond to questions effectively in a cross examination in the unfamiliar, emotive, and highly stressful family court environment.

Fortunately, a recent case (W v H [2022] EWFC 150), has established that the court’s only concern when assessing the vulnerability of a neurodivergent individual is whether they can fairly and fully participate and give their best evidence in the proceedings. Whether they can manage their conditions in their day-to-day lives is irrelevant.

Third Party Support

An intermediary is a third party who can be appointed to assess and support neurodivergent individuals deemed vulnerable. They play a crucial role in bridging the gap between neurodiverse individuals and the court and can support neurodiverse individuals in the following ways:

• recommending to the court on how they can best ensure the individual can fully participate in the proceedings, e.g., by recommending the court only ask short, simple questions;
• communicating questions put to the individual to help them understand and vice-versa for the person asking the questions; and
• assisting the individual with preparing their statement

While intermediaries are only appointed for compelling reasons, i.e., they cannot be appointed just to improve proceedings, the case of W v H hopefully demonstrates that the court will take neurodiversity seriously when considering an individual’s vulnerability and need for support during proceedings.

In this case the court revised its case management directions (i.e., instructions on what needs to be done for each step of the litigation) to allow an intermediary assessment to consider special measures for the husband after he was diagnosed with autism during the proceedings. The husband was an obstetrician so was considered highly capable and initially assumed to be able to engage in the proceedings. Therefore, this decision was seen as a step forward in encouraging courts to proactively assist neurodiverse individuals to ensure they can participate fully and fairly even where their needs are not immediately apparent.

Participation Directions

The court must consider whether a party’s participation or the quality of their evidence might be compromised by their vulnerability and whether to make participation directions as a result.  Participation directions are tailored instructions ensuring vulnerable parties can fully engage in legal proceedings and provide their best possible evidence. Examples of participation directions the court can order include:

• Allowing a party or witness to join hearings and give evidence via live video links; and
• Allowing devices or an intermediary to help individual communicate.

The court can also use their general case management powers to make directions they consider appropriate to aid a neurodivergent individual. For example, they may order regular breaks to enable an individual with ADHD to maintain focus, or require the use of simple language to aid a dyslexic individual’s understanding. The court will also consider if it is appropriate for the individual to give evidence, and if so, how.

For example, the evidence could be oral or written and could be given before or during the proceedings. Likewise, if the individual is to be cross-examined the court can direct that questions are not to be repeated by more than one barrister without the court’s permission or that questions and topics must be agreed before the hearing.

Consider alternatives to court

Despite the support that can be offered at court, traditional court proceedings are difficult and draining for anyone, and this may be felt more acutely by neurodivergent individuals. If possible, alternative routes to resolving disputes, such as mediation, collaborative law, arbitrations, and private hearings can offer a more tailored and less stressful environment to resolve family matters.

Conclusion

It’s crucial to recognize and address the needs of neurodivergent individuals in the family law system. From early identification of neurodiversity to the implementation of third-party support and participation directions, every step taken can significantly impact the individual’s ability to engage fully and fairly in the proceedings.

While traditional court proceedings can be challenging, alternative dispute resolution methods may offer a more tailored and less stressful environment. As we as a society continue to learn and grow in our understanding of neurodiversity, we hope to see ongoing improvements in the support and accommodations provided to neurodivergent individuals in family law proceedings.

Written by Kathaleen Anderson, Kingsley Napley.