In a previous edition of The Review I touched on neurodiversity in proceedings in the family court and the steps that family lawyers can take to help neurodivergent clients deal with the potentially difficult aspects of proceedings. It is therefore no surprise that I was interested to read the judgment from W v H (Contested divorce)  EWFC 150, published at the end of last year, not least because a contested divorce judgment is now (one hopes) something of a unicorn.
The facts are not in themselves unique: W issued a divorce petition on the basis of H’s unreasonable behaviour (ie that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them).
Before the Divorce, Dissolution and Separation Act 2020 came into force in April 2022, this was by far the most common fact relied upon by those seeking a divorce. By and large, family lawyers would encourage petitioners to water down allegations of bad behaviour, in an effort to reduce acrimony and avoid contentious litigation. However, on occasion, this conciliatory approach to divorce can backfire, as was the case with W v H. W’s first petition listed three very vague, unparticularised allegations of controlling, manipulative and bullying behaviour, which she said, led her to conclude that the marriage had broken down irretrievably. After the decree nisi was granted, H applied for this to be set aside, and this application was granted on appeal. W then applied to file an amended petition, in which she sought to better particularise her allegations. H filed an amended answer, disputing all the allegations and thus the matter was listed for a contested final hearing (a familiar, yet thankfully rare, set of facts).
What piqued my interest was H’s diagnosis of autism (which was made during the course of the proceedings), and the court’s handling of this, both in terms of case management and the question of “unreasonable behaviour”.
The court’s approach to neurodiversity in family proceedings
As if often the case, timing is key. Following the publication of S (Vulnerable party: Fairness of proceedings)  EWCA Civ 8, there have been fresh efforts by the court and professional court users to have in mind parties’ (and witnesses’) neuro disabilities and diversities, which may impact on their ability to properly engage in legal proceedings, and importantly, prevent them from giving their very best evidence. So, when H produced his letter of diagnosis, the court was quick to revise case management directions to provide H with time to be assessed by an intermediary, and later to ensure there were special measures in place.
As a solicitor who has battled for the appointment of an intermediary, this shift is welcome and reassuring. I can’t help but feel it is also important to highlight that, as was the case with H, neurodiversity such as autism can go undiagnosed for many years. Even where there has been a formal diagnosis, one does not immediately associate this with the need for an intermediary or participation directions; H in this case was an obstetrician – a very capable professional – and perhaps one could be forgiven for assuming he would be fully capable of engaging in proceedings. Alas, as the saying goes, when one assumes …
As legal professionals, we all have a duty to ensure that all parties and witnesses are able to properly engage in proceedings and are given the opportunity to make their case and give the best possible evidence. If we are aware of a party’s neurodiversity, this must be discussed at the earliest opportunity to ensure that appropriate adjustments are made, where necessary. This must become second nature to us.
I am hopeful that the swift and pragmatic action taken by the court in W v H will set the new standard, and the approach taken will quickly feed down to the lower courts.
Neurodiversity and “unreasonable behaviour”
Following the introduction of no-fault divorce in 2022, consideration of what may amount to unreasonable behaviour has become a somewhat academic exercise. Indeed, as stated at the outset, one would expect contested divorce final hearings to quickly become a thing of the past, with only those last petitions, filed under the old law, left with this as an option.
Whilst HHJ Greensmith was clear that H’s autism was, in his view, likely to have influenced his behaviour during the marriage, and that such behaviour, if proven, could meet the threshold of unreasonable behaviour, he hastened to add that this would always be case specific and when applying the test, the judge must look at the petitioner and respondent before them. The test does not differ simply because a party is neurodivergent. It would of course not be right to say that all traits associated with a particular neurodiversity could amount to unreasonable behaviour, but equally, it would be wrong to suggest that any behaviour potentially linked to someone’s neurodiversity must always be tolerated. The test is both subjective and objective: is it reasonable to expect this petitioner to continue living with this respondent, when considering all the circumstances of the case and the behaviour which has been found by the court to have occurred.
In the current case, W’s case fell apart in evidence and HHJ Greensmith was not satisfied that H had behaved is such a way that W couldn’t reasonably be expected to live with him. He went further and suggested that W, as a social worker, ‘could reasonably be expected to show a level of empathy and professional understanding of the personalities’ of H. This was the case despite H’s diagnosis post-dating W’s initial petition for divorce.
Perhaps a helpful reminder for us all to consider more generally what reasonable adjustments we can accommodate both in our personal and professional relationship.