Nicole Keeling
A major step towards inclusivity in the family justice system has been taken with the release of new guidance aimed at ensuring neurodivergent individuals can participate fully in legal proceedings.
Published by the Family Justice Council, the guidance provides practical recommendations for family law solicitors and court professionals to accommodate the needs of neurodivergent clients.
With an estimated 15% of the population identifying as neurodivergent—including individuals with autism, ADHD, dyslexia, and other cognitive differences—the guidance recognises that traditional courtroom processes can be particularly challenging for them. Issues such as complex questioning, rapid information processing, and sensory sensitivities can create barriers to effective participation.
A Call for Greater Awareness and Adaptation
Sir Andrew McFarlane, President of the Family Division, has urged legal professionals to familiarise themselves with the new recommendations, emphasising that failing to recognise and accommodate neurodivergence can lead to unequal access to justice. He stated:
“A justice system that does not acknowledge or support neurodivergent individuals risks excluding them from fair participation. With relatively minor adjustments, we can significantly improve access to justice for families and children.”
The guidance suggests that solicitors and court officials assess whether a client or witness may be neurodivergent at the earliest opportunity. It encourages the use of a structured approach—such as the ‘SPELL’ framework (Structure, Positive Approaches, Empathy, Low Arousal, and Links)—to ensure that appropriate adjustments are made.
Key Challenges Faced by Neurodivergent Individuals in Court
The guidance highlights several common difficulties neurodivergent individuals may encounter during family law proceedings:
- Misunderstandings and Stereotypes – There is a risk that behaviours associated with neurodivergence, such as difficulty maintaining eye contact or delays in responding, may be misinterpreted as dishonesty or evasiveness.
- Communication Barriers – Lengthy or complex questioning can overwhelm individuals who process information differently.
- Sensory Sensitivities – Bright lighting, loud noises, or crowded spaces may cause distress, affecting the individual’s ability to engage effectively.
- Need for Predictability – Unexpected changes in proceedings can increase anxiety and hinder participation.
Proposed Adjustments to Improve Participation
The guidance sets out practical steps that legal professionals and courts can take to create a more supportive environment. These include:
- Communication Adjustments – Using clear, concise language, offering written rather than verbal information where appropriate, and avoiding sensory discomforts such as black text on white backgrounds.
- Environmental Modifications – Removing unnecessary distractions, such as ticking clocks or harsh lighting, and providing quiet spaces for those who need them.
- Structural and Timing Adjustments – Allowing regular breaks, adhering to pre-agreed schedules, and providing visual aids to help individuals navigate proceedings.
Additionally, the guidance advises courts to consider appointing intermediaries to assist neurodivergent individuals in understanding and engaging with the legal process. However, it notes that intermediaries should only be used when necessary to ensure fair participation, rather than simply to ease proceedings.
Legal Precedents and Participation Directions
The guidance aligns with recent case law, such as W v H [2022] EWFC 150, which reinforced the principle that the court’s primary concern should be whether an individual can effectively participate and give their best evidence, rather than their ability to function in day-to-day life.
Family courts are also encouraged to use ‘participation directions’—tailored instructions designed to support vulnerable individuals in giving evidence. This may include allowing remote testimony via video link, simplifying questioning techniques, or modifying the structure of hearings to accommodate neurodivergent needs.
Alternative Dispute Resolution as a Consideration
Recognising that traditional courtroom settings can be particularly stressful for neurodivergent individuals, the guidance suggests that alternative dispute resolution (ADR) methods, such as mediation and arbitration, be considered where appropriate. These methods can provide a more flexible and supportive environment for resolving family disputes without the pressures of formal court proceedings.
Towards a More Inclusive Legal System
The publication of this guidance represents a significant step forward in ensuring that neurodivergent individuals receive fair treatment and access to justice in family law cases. By fostering greater awareness and implementing relatively simple adjustments, legal professionals can help create a more inclusive family court system that recognises and accommodates neurodiversity.
As the legal community begins to integrate these best practices, it is hoped that more neurodivergent individuals will be able to engage fully in proceedings, ensuring that outcomes in family law cases are both fair and equitable for all involved.