Neurodiversity guidance issued for family lawyers
Landmark new guidance has been issued for legal practitioners working with neurodivergent users of the Family Justice System.
The guidance is published by the Family Justice Council, an advisory body whose primary role is to promote an inter-disciplinary approach to family justice, and to monitor the system
The guidance seeks to address concerns 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. As the guidance states:
“Neurodivergent participants may struggle to follow proceedings and remain engaged. Such pressures may result in people becoming flustered or agitated, which may in turn lead a Judge to draw adverse inferences or conclude that the witness was not telling the truth. Such obstacles carry the risk that an individual might not be able to give their ‘best evidence’, which undermines the fairness of the process.”
The guidance aims to deal with the problem by setting out best practice guidance for practitioners.
‘Neurodiversity’ refers to the natural differences across the population in the way people’s brains work and the way they may present. This includes the way people appear to think or process information, how they organise their behaviour, and their ability to perform certain sensory-motor tasks.
People whose brains work in the way that most people’s brains work, or as most of society expects, are referred to as “neurotypical”. People whose brains work differently from so called ‘neurotypical’ people are called ‘neurodivergent’.
It is estimated that 15% of the population are neurodivergent, due to the way their brain has developed. Such neurodivergence may include specific neurodevelopmental conditions such as autism, Attention Deficit Hyperactivity Disorder (ADHD), and dyslexia.
The guidance provides advice as to how practitioners may identify if a person is neurodivergent, for example by setting out a number of questions they may ask if they have concerns about that person.
The guidance then goes on to suggest what adjustments may be needed where a person has been identified as neurodivergent.
The three types of adjustments that are most commonly needed are:
1. Adjustments to communication – such as contacting the person by email, rather than by phone; using shorter sentences; and allowing more time to answer questions.
2. Adjustments to the environment – such as removing a loudly ticking clock; switching off harsh lighting; and providing the chance for the person to familiarise themselves with new places in advance, such as the courtroom.
3. Adjustments to the structure and timing of different aspects of the process, for instance, the court day or client conferences – such as having important discussions or giving evidence at a particular time of day; taking regular breaks; and sticking to a pre-agreed visual/ written timetable as much as possible.
In a foreword to the guidance the President of the Family Division Sir Andrew McFarlane comments:
“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.”
You can find the full guidance here.
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