Sofia Santos and Catharine Langley summarise the recent guidance from the FJC on Neurodiversity in the Family Justice System, in light of recent case law clarifying the position on intermediaries.
That guidance is summarised in their helpful article:
Practitioners in family law will be readily familiar with the importance of ensuring that any neurodiversity in clients is identified as early as possible within proceedings to ensure that they are able to engage to the best of their ability. It is estimated that around 15% of the population are neurodivergent and thus it is essential that we understand how to best facilitate their participation.
It is crucial to understand that neurodivergence describes the way a person’s brain has developed. It is not a learning disability or a mental illness which needs to be “cured”. People may have one or more than one form of neurodivergence. Common types of neurodivergence are referred to as Autistic Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), Dyslexia, Dyscalculia, Tourette’s Syndrome, Dyspraxia and Dysgraphia.
Practitioners should already be well versed in the Advocate’s Gateway Toolkits which provide guidance in a number of areas including ground rules hearings, questioning people with autism, a learning disability or hidden disabilities and identifying vulnerability in witnesses among others.
In January 2025, the Family Justice Council released their guidance on Neurodiversity in the Family Justice System for Practitioners. This article will explore some of the key takeaways.
Research
Research has indicated that neurodivergent people are more likely to experience anxiety before they enter the proceedings. This can then be made worse if adjustments are not available and the attitudes of others are negative or dismissive.
Cross examination can be lengthy, rigorous and stressful and, when giving evidence, witnesses may be referred to various statements and asked to process information quickly, which may cause difficulties and cause neurodivergent participants to struggle to remain engaged.
If adjustments are not properly explored, participants may become frustrated or agitated which may lead to adverse inferences being drawn or an inability to give their best evidence, thereby undermining the fairness of the process.
The Family Justice Council identifies key themes impacting neurodivergent individuals in family proceedings including:
- Misunderstandings, stereotypes and stigma
- Communication
- Social interaction and presentation
- Anxiety
- Engagement in proceedings
- Needs around predictability
- Sensory issues
Best Practice Guidance
Best practice is set out as follows:
- At the earliest stage, thought should be given to whether someone might be neurodivergent.
- Is there an existing diagnosis? If so, consider expert assessment to understand their needs, strengths and any barriers they may fact.
- Where there is no existing diagnosis, the Advocates Gateway – Toolkit 10 ‘identifying Vulnerable Witnesses’ para 2.2 provides a useful checklist to help identify is someone may be vulnerable. This should be undertaken sensitively, empathically and at a manageable pace for the participant.
- The participant should be informed that information may need to be shared with the other parties, professionals and the court.
- Further information may be required from different sources including:
- Health, education or social services
- Friends, family or carers
- Formal assessment as to whether someone is neurodivergent or their needs and profile
- An intermediary assessment of someone’s communication needs
- Consideration must be given as to what barriers the person may be facing away from court, at court, during a hearing, while giving evidence.
- This should be discussed and agreed with the client.
- This should be discussed and agreed with the client.
- Consider what adjustments are needed to overcome these barriers
- Most commonly: adjustments to communication, the environment and to the structure and timing of the process eg. the court day or client conferences.
- Adjustments to communication may include using shorter sentences, allowing time to consider information and answer questions, presenting written material in a different format.Adjustments to the environment may include adjusting lighting, giving permission to move around, giving access to a private and quiet area.Adjustments to structure and timing may include having regular breaks, sticking to pre-agreed timetables, taking extra steps to ensure someone is clear about what will happen and when.
- Any adjustments should be discussed and agreed with the client before it is shared with the other parties.
- Apply for reasonable adjustments
- Throughout proceedings, adjustments should be kept under review. In particular, before a person gives evidence, there should be a ground rules hearing to review any adjustments required.
Consideration must be given as to whether a client would be assisted by an intermediary appointed by the Court. Practitioners will be aware that this has been a developing area of case law but clarification has recently been given by the Court of Appeal in Re M (A Child: Intermediaries) [2025] EWCA Civ 440 which sets out at ¶7 the factors to consider when determining whether to approve the appointment of an intermediary and confirms that “the test for the appointment of an intermediary for any aspect of proceedings is that it is necessary to achieve a fair hearing”. Part 3A and Practice Direction 3AA of the Family Procedure Rules 2010 remain central and the court is expected to apply this framework to all cases where the necessity of an intermediary is raised.
This blog was written by Sofia Santos and Catharine Langley, who practice in all areas of family law. Please get in touch if you have any additional questions and we will be pleased to help you.