Neurodiversity and proceedings in the family court

As family practitioners we are all now very familiar with the idea of vulnerable parties and the application of Family Procedure Rules (FPR) PD3A and PD3AA. The most obvious example of vulnerability that we see are victims of domestic abuse, and family law practitioners – and indeed the court – are quite adept at ensuring the relevant safeguards are in place. An area of vulnerability which can go unseen and unaddressed within family proceedings is neurodiversity.

What is neurodiversity?

Neurodiversity is a term used to refer to differences in neurodevelopment or, put simply, a difference in the way the brain works or learns and processes information. The best-known categories of neurodiversity include:

• Autism (including Asperger’s Syndrome)
• Attention-deficit hyperactivity disorder (ADHD)/ADD
• Dyslexia
• Dyspraxia
• Tourette’s Syndrome

You are unlikely to know that a person is neurodivergent unless they tell you, although there are a variety of characteristics or behaviours one might exhibit, though note that diagnostic/assessment guidance has largely been created based on typical presentation in men.

What is the relevance in family proceedings?

The neurodivergent community can experience challenges in certain environments or when undertaking certain activities, which can be eased with reasonable adjustments.

If someone has a matter within the Family Court, this can be a very stressful and foreign experience for them. This is true regardless of whether someone is neurodivergent or not. However, there are particular challenges clients might face at each stage of proceedings if they are in fact neurodivergent.

Instructions and client care

Let’s say a client is dyslexic. This may make it very difficult for them to digest substantial written information, for example, letters of advice. They may also struggle to provide clear written instructions.

Some people with dyslexia particularly struggle with forms, which can certainly pose a problem in financial proceedings, when parties are required to complete the very extensive Form E.

As another example, if a client has ADHD, it may be challenging to process exactly what is being asked of them, if there are multiple tasks for them to complete (for example, an email asking for updating disclosure, property particulars, mortgage raising capacity, thoughts on a proposal for settlement and money on account).

Engagement in proceedings

When in court, it can be very difficult as a lay person to follow what the lawyers (and the judge) are saying and what this means for the client. If they have ADHD or have difficulties processing oral information/instructions, this difficulty is compounded.

As lawyers, we must follow our client’s instructions, and present their case to the court accordingly. If a client feels as though they are unable to properly express themselves, or give clear instructions, this can mean that they feel their voice is not being heard. This can be seriously detrimental to the lawyer/client relationship and, also, the client’s overall confidence in the legal system and any final outcome.

Statements

Typically, in family proceedings, a client’s main evidence is a written statement. Depending on the complexities of the case, this can range from a 4-page document to a 40-page document. This can be an incredibly daunting prospect for someone with dyslexia, for example.

Evidence

Aside from your client’s written evidence, much will be decided based on how they present in court and, particularly, when being cross examined. As we know, within family proceedings cross-examination can last for a morning/afternoon in simple cases, or can take place over a number of days in complex cases. The process can be rigorous and stressful and clients will be referred to various statements and other written evidence before the court.

Often, they will be asked to quickly read a statement they have made previously. For someone with dyslexia, this direction could be overwhelming. Someone with ADHD may struggle to follow and remain engaged when subjected to hours of non-stop questioning. These pressures may result in a witness becoming flustered or agitated, and if not properly aware of the difficulties the witness is facing, this presentation may lead a judge to draw adverse inference or conclude that the witness was not telling the truth. Similarly, someone with autism may respond to questions or present differently to someone who is neurotypical, and again a judge could draw adverse inferences from this.

Why does this matter for family lawyers? Well, we (and the courts) have a duty to ensure that all parties are able to properly engage in proceedings (to follow what’s going on, and give their instructions accordingly), and are given the opportunity to properly make their case and give the best possible evidence. This duty extends not just to our own clients, but also the other party. If we have any concerns about a party’s vulnerability, it must be raised at the earliest opportunity. If a party’s vulnerability is not addressed, this could be a clear appeal point.

What can be done to help?

As stated above, there are a number of things that can be done to support someone to ensure they are able to engage in their matter and to give the best possible evidence to the court.

Client care considerations

When taking on a new client, one might want to consider asking whether they require any reasonable adjustments. These could be:

• Agreeing a preferred method of contact.
• Sending hard copies as well as electronic copies (and considering whether a larger font would be helpful).
• When requiring clients to complete multiple tasks, giving these one at a time, rather than in one email.
• Should meetings take place in person or online?
• Setting up calendar invites to ensure deadlines are not missed.

If a party has severe dyslexia, reading and writing may be incredibly difficult for them, so it might be necessary to consider whether statements will need to be prepared in a different way (for example, instructions taken over the phone), and whether an alternative attestation clause is necessary, confirming that the statement has been read to the client.

If your client is neurodiverse, they will know what you can do to help them so it’s important to ask and open the conversation. Do not assume that particular adjustments are required, simply because they have a particular neurodiversity.

Intermediaries

A key direction available to the court is the instruction of an intermediary. An intermediary is a professional third party who is instructed to complete an assessment of a vulnerable party and then advise the court on how that party can (and should) be supported within proceedings. Once the assessment has been completed, an intermediary will ensure that the vulnerable party is able to follow the process, understands what is happening, and is able to give clear directions. They may provide support during preparation of statements, if recommended, and will also support a party in giving their evidence in court. This can be simply by setting ground rules for cross-examination (recommending short, simply questions), reminding the court about presentation of witnesses, or by assisting the witness in their understanding of a question and answering this accurately. (See Nicola Lewis’s article “Vulnerability: intermediaries and changes to the Family Court intermediary landscape” in issue 218 for more about the role of intermediaries).

Participation directions

The court may wish to make participation directions, to ensure a vulnerable party is able to follow proceedings and/or give their best evidence. If an intermediary is appointed, they will be able to give recommendations on what these might be. An obvious participation direction might be regular breaks.

Special considerations in cases involving neurodiverse children

If your client’s matter relates to arrangements for children and any of the children are neurodiverse, it is important to ensure that any expert appointed has the requisite expertise in dealing with neurodiverse children/young people. Whether this is Cafcass or an independent social worker (ISW), this should be flagged at an early stage, as understanding the additional challenges a child might face if the court orders a change in residence or contact pattern may well be integral to an ultimate result.

Consideration should also be given as to whether the child should be supported by an intermediary in any interviews, or whether the case warrants the child to have their own representation.

Cafcass have published some useful guidance on working with children with autism, which can be found at www.cafcass.gov.uk/family-justice-young-peoples-board/top-tips-for-professionals/