Overview of the Family Justice Council Guidance on Neurodiversity

The FJC’s 24-page guidance is intended to help family lawyers recognise and accommodate neurodivergence in their clients and other participants. It can be accessed here.

The guidance recognises that neurodivergence can impact children and families in two key, intertwined, ways:
(a) Assessments undertaken before, during, and after proceedings, or as part of dispute resolution; and
(b) Barriers to participation in proceedings, which in turn restricts access to justice and to a fair trial.

The guidance considers the second of these two issues.

Nature and types of neurodiversity
It is estimated than 15% of the population are neurodivergent due to the way their brain has developed. Misconceptions and negative stereotypes about neurodiversity remain pervasive. The way in which an individual’s neurodivergence is expressed will vary, and unhelpful stereotypes may compound problems in identifying neurodivergence. However, common neurodivergent conditions and their perceived features include the following:

• Autism
  • Perceived strengths: values-driven, principled, honest, hyperfocus, analytical.
  • Perceived limitations: social and communication challenges, rigidity and anxiety.
• Attention Deficit Hyperactivity Disorder (ADHD)
  • Perceived strengths: intense energy, multitasking, memory, creative.
  • Perceived weaknesses: difficulty with concentration, emotional regulation and organisation; impulsive.
• Dyslexia
  • Perceived strengths: creative thinking and problem solving; strong verbal skills.
  • Perceived weaknesses: challenges in reading, sequencing, and processing information.
• Dyscalculia
  • Perceived strengths: problem solving, strategic thinking and creativity.
  • Perceived weaknesses: challenges with arithmetic and grasp of number concepts.
• Developmental coordination disorder (DCD) (including dyspraxia)
  • Perceived strengths: creative, strategic and ‘outside the box’ thinking, high literacy.
  • Perceived weaknesses: challenges in physical coordination of daily activities.
• Dysgraphia
  • Perceived strengths: creative, problem-solving, memory and communication.
  • Perceived weaknesses: turning thoughts into written language, writing, fine motor skills.
• Tourette’s Syndrome
  • Perceived strengths: memory and language skills, self-control, skill acquisition.
  • Perceived weaknesses: involuntary sounds and movements called ‘tics’.

People often develop ways of managing the impact of their condition. This includes ‘masking’ when someone uses strategies to make signs of their neurodivergence less obvious to other people. Masking can be a difficult and exhausting process. Some people do not accept their diagnosis and do not wish to be identified as neurodivergent. Some may accept a diagnosis, but not want it disclosed widely. Others may embrace a diagnosis, with their neurodivergence forming an important part of their identity.

What to consider when a party is neurodivergent
Misunderstandings, stereotypes and stigma
Stigma, misconceptions and stereotypes remain pervasive. For example, venting frustration can be labelled as aggressive, even though the frustration can be caused by unmet needs creating overwhelm. Frustration can be avoided through proactive planning for challenging outcomes.

Communication
Altered communication styles and needs can feature. Understanding that autistic people communicate in different but equally valid ways can help professionals find ways of communicating that work for everyone. This is likely to involve the use of alternative modes of communication, for example, written and visual forms of communication.

Social interaction and presentation
There can be different preferences regarding eye contact, which may be wrongly interpreted as an individual not listening or participating. ‘Stimming’ behaviours may be used as a means of self-regulation. Social hierarchies may not be perceived as others perceive them, leading to social interactions that may appear rude.

Anxiety
Anxiety is more prevalent amongst those who are neurodivergent, as they are operating in a society designed for neurotypical people. The court proceedings are likely to exacerbate stresses.

Engaging in proceedings
Neurodivergent people may find it challenging to process exactly what is being asked of them, especially if questions are unclear. Professionals can accommodate these challenges by proactively preparing. People with autism may recall information less well when given very open and unfocussed questions. Attention-Deficit Hyperactivity Disorder (ADHD) may make it difficult for individuals to wait their turn to speak, or to sustain their attention during proceedings, with their focus being easily diverted by small distractions. Energy may be expended in lengthy or intensive hearings and may result in the person disengaging from or disrupting proceedings. A phenomenon known as ‘shut down’ or ‘melt down’ may occur. These are states of overwhelm that are distressing for the individual. These elements should be factored into the planning of sessions.

Sensory issues
Some may have extreme sensory sensitivity to light, sounds or smells due to the way the brain processes information. This can be exhausting and highly distracting, preventing people from concentrating on what is being said/asked.

The legal basis for making adjustments
The mechanism is the regime set out in Part 3A and PD3AA of the Family Procedure Rules (FPR) 2010. Someone with additional needs, or facing barriers due to neurodivergence, will be a vulnerable person as defined in Part 3A of the FPR.

Paragraph 1.2 of the PD3AA says:
“This Practice Direction sets out the procedure and practice to be followed to achieve a fair hearing by providing for appropriate measures to be put in place to ensure that the participation of parties and the quality of the evidence of the parties and other witnesses is not diminished by reason of their vulnerability.”

The Family Court may only make orders which interfere with someone’s Article 8 rights of the ECHR when it is necessary and proportionate to do so. Article 6 of the EHCR provides an absolute right to a fair trial for everyone. Sometimes adjustments are needed to ensure that Article 6 rights are upheld and extend beyond the courtroom. For instance, Munby J (as he then was) said in Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 at Para 113:
“The fair trial guaranteed by Art 6 is not confined to the ‘purely judicial’ part of the proceedings. Unfairness at any stage of the litigation process may involve beaches of Art 8 and Art 6. Art 6 rights are absolute: they cannot be watered down or qualified”.

Also, the overriding objective found in part 1 of the Family Procedure Rules makes clear the importance of cases being dealt with justly, fairly and ensuring that the parties are on an equal footing.

The role of an intermediary in family proceedings
The President of the Family Division has recently (Jan 2025) issued Practice Guidance on the use of intermediaries, lay advocates and cognitive assessments in the family court. That guidance can be found here.

It is the court that authorises the appointment of an intermediary and HMCTS that funds the attendance of an intermediary at court. The Legal Aid Agency, subject to merit and prior authority, may fund an intermediary to cover sessions between a party and their representative outside of court attendance.

[The recent case of M (A Child: Intermediaries) [2025] EWCA Civ 440 sets out an up to date position (deprecating the obiter comments of Lieven J in West Northamptonshire Council v KA v MH v X [2024] EWHC 79 (Fam)). It reaffirms the test as one of necessity: “… there is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality. Frequency is not a test, and nor is exceptionality. Similarly, the introduction of tests of “compelling reasons”, or of adjournments for lack of an intermediary being “unusual” or “very unusual”, beckon the court to short-circuit its consideration of the evidence in the individual case.” (para 41).]

Identifying needs and adjustments – best practice guidance

STEP 1 – LOOKING OUT FOR NEURODIVERGENCE
In every case, at the earliest stage, thought should be given to whether someone might be neurodivergent. Any existing diagnosis should be accessed (if there is agreement), though further information may also be required.

If there is no existing diagnosis, the practitioner should carry out the following information-gathering exercise with the individual who may be neurodivergent. They do not indicate a diagnosis or a need for a diagnosis.

The purpose of the exercise should be clearly explained before starting, and should take place in a calm and private space with few distractions. Allow at least 45 minutes and be prepared to pause the meeting if the person becomes distressed or anxious, lacks the energy or willingness to proceed. The questions should be asked sensitively. Before the exercise begins, it should be made clear that some or all of the information gathered may need to be shared with the other parties, professionals, and the court. Depending on your role, you will need to ensure you have appropriate consent before sharing the information gathered.

• Do you receive Personal Independence Payment (PIP) or Disability Living Allowance (DLA)? Have you ever received PIP or DLA?
• Have you ever been referred for a Community Care Act assessment? If so, what for and what was the outcome?
• Have you ever received any extra professional support (from health services, social services or charities)?
• Did you struggle with reading, writing or maths in school?
• Did you receive extra help in school?
• Do you find it difficult to concentrate or pay attention?
• Are you a slow or fast reader?
• Are you able to understand and remember what you read?
• How easy do you find writing by hand?
• Do you find noisy and crowded spaces difficult?
• Do you get worried by change?
• Do you feel able to express your thoughts easily?
• Do you ever feel like you have too many thoughts at once?
• What do you feel when you go to a new environment?
• How do you find talking to people that you don’t know?
• Do you ever struggle with understanding turns of phrase, sayings or metaphors?
• Do you struggle with numbers or telling the time?
• Do you have any problems with coordination or balance?
• Do you have any problems when trying to speak?
• Do you feel anxious for long periods?
• Have you ever been diagnosed with any psychological or mental health condition?
• Have any of your family members been diagnosed with any psychological or mental health condition?

STEP 2 – IS FURTHER INFORMATION NEEDED?
The above exercise, or being aware of a diagnosis, will often necessitate further information being obtained, e.g. from agencies, or friends and family with consent. A formal assessment may be required. An assessment of someone’s communication needs by an intermediary be required.

STEP 3 – WHAT BARRIERS IS THIS PERSON FACING?
Use all available information about the person’s needs and preferences to consider what barriers the person might face in the family justice system:

• away from court
• at court generally
• at court and during a hearing but not giving evidence
• at court and giving evidence

Discuss your thoughts with the individual and see if they agree or disagree, or have other barriers to add.

STEP 4 – WHAT ADJUSTMENTS ARE NEEDED TO OVERCOME THESE BARRIERS?
There are a wide range of adjustments that can be made. The right adjustments will always depend on the person’s individual needs, as opposed to any label or diagnosis. Many adjustments are straightforward and simple.

Adjustments needed should be broken down into four scenarios:

• adjustments required away from court
• adjustments required at court generally
• adjustments required at court and during a hearing but not giving evidence
• adjustments required at court and giving evidence

Once you have a draft list of the adjustments proposed in each of the four scenarios, check that all barriers have been addressed. The person who is to benefit from the adjustments should have the chance to consider the draft list, make changes and ask questions about it.

STEP 5 – APPLYING FOR REASONABLE ADJUSTMENTS
There is no standard format for such a request.

STEP 6 – TIMING
Whether adjustments are needed should be considered at the earliest stage of proceedings, or at the start of any pre-proceedings process. They must be kept under review throughout proceedings to ensure they continue to meet the individual’s needs. There should be an explicit review at a ground rules hearing before the person gives evidence, as anticipated in para 5 PD 3AA FPR.