In late January, the Family Justice Council released Guidance on Neurodiversity in the Family Justice System for Practitioners. This 24-page document, aimed at legal professionals, highlights the importance of understanding the needs of clients with neurodiverse diagnoses or traits so that they can access fair and equal justice. Similar guidance is due to be released to judges in the Family Court in England and Wales later this year.
In the foreword to the guidance, 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”.
What is neurodiversity?
Neurodiversity is a term used to describe the natural differences in the way people’s brains work and the way that people present. This might include:
- The way someone thinks or processes information
- The way someone organises their behaviour
- The ability of someone to perform sensory-motor tasks.
It is estimated that 1 in 7 people in the UK have brains that function and process information in a different way to that which society expects. These people are commonly referred to as being neurodivergent or in the neuro-minority. These are umbrella terms used to describe alternative thinking styles such as dyslexia, dyspraxia, dyscalculia, autism, Tourette’s and ADHD. It is not uncommon for someone to present with more than one of these. Accordingly, whilst 1 in 7 people are neurodivergent, there is significant diversity in this number.
Many people will not have a formal diagnosis but may just suspect they have neurodivergent tendencies or will have been told by others they do. There are also many other factors which make up an individual and their specific needs. For example, their mental or physical health, learning disabilities, culture, gender, sex, age and ethnicity. It is incredibly important, therefore, to consider someone’s individual needs rather than make assumptions.
How might neurodivergency impact upon Court proceedings?
The Guidance identified key themes that impact neurodivergent people in proceedings in the Family Court:
- Misunderstandings, stereotypes and stigma. There can be assumptions that a person will act a certain way because of their condition, or the assumption that someone will react in a certain way – with this expected reaction usually based on neuro-typical behaviour. These issues can lead to an incorrect picture being formed about the person, which could impact upon the outcome of their case.
- How questions are posed, or how answers are required can cause difficulties. There can also be difficulties with certain rules, such as taking it in turns to talk or respecting the hierarchy of the courtroom. Issues with communication can lead to someone with neurodivergency feeling like their voice hasn’t been heard properly.
- Social Interaction and Presentation. There is concern about behaviours such as lack of eye contact or stimming being misinterpreted. Also, of difficulties for those with a heightened sense of justice, who may get more easily frustrated or distracted by perceived mistruths or inaccuracies.
- Anxiety, which is more prevalent in neurodivergent people, can be heightened through the Court process and can exacerbate symptoms and traits.
- Engaging in Proceedings.
- The type of questions asked can be particularly troublesome, for example open and vague questions may leave someone wondering what is required of them, or questions grouped together might cause overwhelm.
- Problems with focus or fixation on/reaction to the first part of a sentence, can lead to key questions or evidence being missed.
- Fatigue might be an issue due to masking, medication wearing off or the need to focus on complex matters.
- Needs around Predictability. The lack of control and routine associated with court proceedings can cause anxiety and threaten feelings of safety.
- Sensory Issues. Sensory issues, particularly in a courtroom where there is limited control of the surroundings, can be exhausting, distracting and, for some, physically painful.
The Guidance sets out that failure to recognise and accommodate neurodivergence within the Family Court “leads to parties, witnesses and children not being able to fully participate in proceedings and dispute resolution, potentially compromising their… Human Rights”. Essentially, if a person cannot give their ‘best evidence’ to present their case as they would want to because adjustments have not been made to accommodate how their brain works, how can it be said that they have had a fair trial?
What can a solicitor do to help with this?
Your legal representative’s role is to help you present your case in the best way possible. This includes ensuring that you can actively participate in the proceedings and, if it comes to it, give your best evidence without this being impacted by neurodivergent tendencies.
It is important that you share with your solicitor if you have any conditions or traits that you feel might impact you during the process. This is not just limited to court proceedings – if there is something that can be done to make your experience more manageable from the outset, this is important too. This could include:
- sending letters in word format rather than pdf, so that ‘read aloud’ software can be used
- the adoption of a different colour font to avoid black on a white background
- telephone calls instead of emails (or vice versa).
Within court proceedings, there is a requirement under the Family Procedure Rules (Part 3A) for the court to consider the necessity of Participation Directions if a party is considered vulnerable – which someone who has additional needs or is facing barriers due to neurodivergence will be. Participation Directions are a set of rules put in place to ensure the party can actively engage in the proceedings. These should be raised with a Judge as soon as possible, and recorded in an Order so that all future hearings abide by these rules. Participation Directions could deal with:
- Adjustments to communication such as:
- avoiding double negatives or the use of metaphorical language
- using shorter sentences or questions
- allowing more time to consider information and answer questions
- Adjustments to the environment such as:
- Hearings to take place remotely rather than at the court building
- Removal of loud ticking clocks from rooms
- Switching off harsh lighting
- Allowing the use of a fidget toy, stress ball or preferred item of comfort
- Access to a private and quiet area to wait outside of the courtroom
- The opportunity to view the courtroom in advance
- Adjustments to the structure and timing of different aspects of the process such as:
- Having important discussions or giving evidence at a particular time of day
- Taking regular breaks
- Sticking to a pre-agreed visual/ written timetable as much as possible with warning if there is likely to be a change
- Taking extra steps to make sure that someone is clear about what will happen and when, and who all the people involved with the proceedings are. For example, providing the person with pictures of the lawyers and other professionals along with a description of their role in the proceedings
You should be involved in the consideration of Participation Directions as it is your individual needs that must be accommodated. Whilst your legal representative should talk you through the court process and help you understand what to expect, you know best what will make things feel more manageable for you on the day.
If Participation Directions will not be sufficient, it may be that an intermediary is required to help you with court proceedings. The function of an intermediary is to help a vulnerable person communicate during a hearing (or, in limited circumstances, outside of court), ensuring they understand what’s being asked of them and that their answers are accurately expressed. An intermediary must be applied for and, if approved, is funded by the Court.
It is important not to feel that you are being difficult by asking for accommodations or that such a request will be held against you. Indeed, there is clear case law that “[a]dvocates must adapt to the witness, not the other way round” [R v Lubemba; R v JP [2014]. Moreover, the Court is governed by the overriding objective found in part 1 of the Family Procedure Rules which makes clear the importance of cases being dealt with justly, fairly and ensuring that the parties are on an equal footing.
Our Family team at Stephens Scown are committed to understanding and meeting the needs of our neurodiverse clients. Please contact us on 0345 450 5558 or enquiries@stephens-scown.co.uk if you would like to discuss how we can assist you.