Guidance issued on neurodiversity in family justice system in bid to ensure better participation
The Family Justice Council has today (30 January) published guidance for practitioners on neurodiversity in the family justice system.
The guidance notes that evidence available suggests that neurodivergence is overrepresented among court users, and the fact that it is often underdiagnosed is “likely to further mask its prevalence in those accessing family justice”.
It warns that the failure to recognise and take into account neurodivergence impacts children and families within the family justice system in two ways:
- assessments undertaken before, during and after proceedings, or as part of dispute resolution; and
- barriers to participation in proceedings, which in turn restricts access to justice and to a fair trial.
The guidance covers a number of key themes that impact neurodivergent individuals in family proceedings: ‘Misunderstandings, stereotypes and stigma’, ‘Communication’, ‘Social interaction and presentation’, ‘Engaging in proceedings’, ‘Needs around predictability’, and ‘Sensory issues’.
On engaging in proceedings, it notes: “Neurodivergent people may find it challenging to process exactly what is being asked of them, especially if questions are convoluted or unclear, or there are multiple tasks for them to complete, or several questions are grouped together.
“Accommodating these differences in processing information can be proactively prepared for by professionals.”
Turning to the potential role of an intermediary in family proceedings, the guidance states it is “especially important” for practitioners to consider the assistance a vulnerable party could be entitled to when faced with the prospect of giving evidence.
It adds: “In addition to the resources already referred to within this document is the potential availability of an intermediary appointed by the Court.”
However, referring to observations made by Mrs Justice Lieven in a recent High Court judgment on the use of Intermediaries in the Family Court, the guidance notes that intermediaries should only be appointed if there are "compelling" reasons to do so, and, in determining whether to appoint an intermediary the Judge “must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial”.
It adds: “It will be for the legal parties and the Court to adapt themselves to the witness and not the other way around. Whilst all parties, aided by the opinion of an expert may support the appointment of an intermediary because it will make the hearing, potentially, “easier” that is not the test the Court applies and the Judge has to consider whether the appointment is “justified”.”
On identifying needs and adjustments, the guidance suggests the consideration of the following acronym – ‘SPELL’: Structure; Positive attitudes, approaches and expectations; Empathy; Low arousal; and Links, and offers examples of how to ensure these needs are met.
For instance, on ‘Low arousal’, the guidance encourages practitioners to ask the following questions:
- What adjustments can be made to the environment to reduce problematic sensory factors: light, heat, space, noise, touch?
- Is there a quiet space for the person to use?
- Could a pre-court visit help identify the reasonable adjustment needs?
Further, the guidance states that in every case, at the “earliest stage”, thought should be given to whether someone might be neurodivergent.
It goes on to outline a series of questions that do not constitute screening, but may be helpful in identifying people who may be neurodivergent.
The guidance then recommends practitioners to consider what barriers the person might be facing, and then, what adjustments are needed to overcome the barriers.
It notes that the three types of adjustments are most commonly needed are:
- Adjustments to communication.
- Adjustments to the environment.
- Adjustments to the structure and timing of different aspects of the process, for instance, the court day or client conferences.
And, the adjustments needed should be 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.
Finally, the guidance states that if adjustments are made, they must be kept under review throughout the course of the proceedings, to ensure that they continue to meet the individual’s needs.
The President of the Family Division Sir Andrew McFarlane, said: “It is clear that the failure to recognise and accommodate neurodivergence within 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.
“The universally applicable principle upon which the guidance sits, is that understanding an individual’s needs leads to better participation, and more effective justice. This principle encourages a system that, with relatively light adjustments, can improve participation and outcomes for children and families. I encourage practitioners working within the Family Justice system to read the guidance carefully and to consider how they can adopt best practice.”
Last week, the Family President also issued practice guidance on the use of intermediaries, lay advocates and cognitive assessments in the Family Court.
Lottie Winson
