Guidance on neurodiversity in the Family Justice System

Carolina Bax and Rachel Chan provide an overview for practitioners of The Family Justice Council (FJC) Guidance on Neurodiversity in the Family Justice System. 

The FJC has developed guidance to support legal practitioners in recognising and addressing the needs of neurodivergent individuals in the Family Justice System. The guidance highlights the impact of failing to accommodate neurodivergence, which can prevent fair participation and compromise justice. It also provides best practice recommendations, identifies common challenges neurodivergent parties face, and outlines reasonable adjustments that should be considered by practitioners.

Understanding neurodiversity

A helpful starting point within the guidance is the definition of the term neurodiversity itself. Neurodiversity refers to the natural differences in how individuals think, process information, and interact with the world. The guidance defines "neurotypical" individuals as those whose cognitive functioning aligns with societal expectations. "Neurodivergent" individuals in turn have cognitive patterns that differ from the norm. Neurodivergence should not be viewed as a disorder requiring a "cure," but rather as a different way of thinking that should be accommodated. Common neurodivergent conditions include:

• Autism – Challenges in social interaction, communication and sensory processing, but strengths in integrity, hyperfocus and analytical thinking.
• ADHD – Difficulties with attention, impulsivity and organization, but strengths in energy, creativity and multitasking.
• Dyslexia – Challenges with reading and writing, but strengths in problem-solving and verbal communication.
• Dyscalculia – Challenges with numerical concepts, but strengths in strategic thinking and creativity.
• Dyspraxia (DCD) – Motor coordination challenges, but strengths in literacy and problem-solving.
• Tourette’s Syndrome – Involuntary tics, but strengths in rapid processing and memory.

Legal basis for adjustments

Practitioners are invited to particular reliance on these when addressing any neurodivergence-related needs on the following statute and/or legal frameworks:

• Article 6 & 8 of the European Convention on Human Rights (ECHR) – Right to a fair trial and respect for private and family life.
• Article 12 of the UN Convention on the Rights of the Child – Ensuring children’s voices are heard.
• Equality Act 2010 – Requirement for reasonable adjustments.
• Family Procedure Rules (FPR) 2010, Part 3A and PD3AA – Establishing mechanisms to support vulnerable individuals in court.

Challenges faced by neurodivergent individuals in the Family Justice System

The guidance is underpinned by ample academic research, which highlights several barriers neurodivergent individuals encounter. These include, but are not limited to:

1. Stigma and Misconceptions – Stereotypes about aggression, lack of empathy, or relationship avoidance persist.
2. Communication Differences – Some individuals may struggle with verbal communication, eye contact, or processing complex language.
3. Sensory Sensitivities – Court environments may be overwhelming due to lighting, noise, or unfamiliar settings.
4. Emotional Regulation – Individuals may experience heightened anxiety, difficulty with change, or sensory overload.
5. Courtroom Participation – Long proceedings, rapid questioning, and unfamiliar legal terminology can hinder engagement.

It must be highlighted that some individuals may also "mask" their neurodivergence and either not present in any of the above ways, or indeed present inconsistently.

Best practices for practitioners

The guidance provides a structured framework for supporting neurodivergent individuals, and salient points are summarised under each of the below headings.

Identifying needs and barriers

Practitioners should: 

• Consider whether someone may be neurodivergent at the earliest stage – a useful checklist is Toolkit 10, para 2.2 within the Advocates Gateway (“Identifying Vulnerable Witnesses), though it bears highlighting that whilst the checklist may assist in identifying individuals who may be neurodivergent, they do not act as screening or a diagnostic tool.
• Ask key questions to understand challenges (e.g., difficulties with reading, concentration, or sensory sensitivities).
• Seek additional information, including medical or educational reports, if needed.

In thinking and approaching the issue of neurodivergence they may also be assisted by the SPELL mnemonic, developed initially for autism but which has been applied across other neurodivergent groups.

Making reasonable adjustments

Per Lady Justice Hallett in R v Lubemba; R v JP [2014] EWCA Crim 2064 at paragraph 45, “Advocates must adapt to the witness, not the other way round”. In making reasonable adjustments, practitioners should be mindful that the same are effectively tailored to individual needs, exemplified as follows:

Communication adjustments:

• Use clear, direct language.
• Allow additional time for responses.
• Provide information in different formats (e.g., written, visual).

Environmental adjustments:

• Reduce sensory distractions (e.g., remove ticking clocks, adjust lighting).
• Provide quiet waiting areas.
• Allow fidget toys or movement breaks.

Structural and procedural adjustments:

• Schedule hearings at optimal times for the individual.
• Offer breaks and shorter sessions.
• Allow pre-court visits to familiarise individuals with the environment.

Use of intermediaries

Practitioners are reminded of the recent guidance issued by Mrs Justice Lieven on intermediaries in the case of West Northamptonshire Council v Ka & Ors [2024] (summarised by Rachel Chan) 

Screening and awareness training

The Criminal Justice Joint Inspection (2021) recommended more routine screening to identify neurodivergence in service users, which would in turn provide a more accurate assessment of the prevalence of neurodivergence and inform service planning. Given that the amount of research confirming neurodivergence may act as a barrier to accessing justice, courts and legal professionals should proactively identify neurodivergent individuals and provide appropriate accommodations. Appropriate and tailored training is essential to improve awareness and reduce bias among practitioners.

It is hoped that under the auspices of the guidance, practitioners, for their part, by making meaningful adjustments and educating themselves regarding the various presentations of neurodivergent and neurodiverse individuals, are able to ensure that neurodivergent parties participate fully and fairly in legal proceedings. 

Rachel Chan and Carolina Bax are barristers at 42BR.