Diverse minds, Diverse decisions: How is neurodiversity considered in the Family Justice System?

Amidst the growing awareness and understanding of neurodiversity in the UK, there has been a notable surge in adults and children being diagnosed with conditions like autism and attention deficit/hyperactivity disorder (ADHD) in particular. It is estimated that around 1 in 7 people in the UK are neurodivergent. This cultural shift has left parents and families navigating the family justice system increasingly curious about how their, their spouse or their child's neurodiversity will factor into the court's decision-making process. This blog will address if and how the family justice system accounts for a parent or child’s neurodiversity in children proceedings and financial remedy proceedings.
 

Children proceedings

The court’s paramount consideration when making any decision relating to the care of a child is is what is in the child’s ‘best interests’. Section 1 of the Children Act 1989 lays out a helpful ‘welfare checklist’ to help determine this. The most relevant factors if your child is neurodivergent include:

• Wishes and feelings
• Physical, emotional, and educational needs
• The likely effect of any change in circumstances

We see this in practice in the case of Re K, L & M (children) (child arrangement orders), where the child was a 15-year old with autism. The court found the father was unable or unwilling to comprehend how his turbulent emotional state could disorientate and upset his child and there was a history of violence by the father against the child.  As a result, the court made a rare order for no direct contact between the father and the child until he turned 18 due to the exceptional circumstances of the father’s behaviour, the child’s emotional needs, and heightened need for protection and certainty due to his autism.  

A child’s diagnosis of a neurodevelopmental condition would and should be considered carefully when ascertaining their wishes and feelings. In children proceedings, the court may direct that a Family Court Adviser (‘FCA’), or an Independent Social Worker (‘ISW’) prepares a report (known as a Section 7 Report) on the child’s welfare and what is in their best interests. It is important that the individual appointed has expertise in working with neurodiverse children, and that any conditions are flagged as early as possible. This may impact how the expert interacts with a child to better understand their views, inform them of any additional challenges the child may face (e.g., if a court orders a change in contact pattern). The Children and Family Court Advisory and Support Service (‘CAFCASS’) have published helpful guidance on their approach when working with children with autism and specific learning difficulties.  

A parent’s neurodivergence is also relevant when determining child arrangements, as one factor in the welfare checklist is:

• How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.

As with a child, it is crucial that a parent’s condition is identified and flagged to the court as early as possible to ensure the court fairly c this before making its decision, and does not misconstrue the parent’s behaviour or communication to their detriment.  The importance of this came to light in D and E (Parent with Autism) .  A mother of five children was diagnosed with autism part way through the proceedings. The local authority had directed that: two of her children be placed for adoption, two placed in care the care of their grandparents, and one placed in long-term foster care. Many of the features of the mother’s presentation which caused the Local Authority concerns were features of her autism. For example, in assessments with a social worker she presented as distressed and tearful, but in a psychiatric assessment where her needs were understood she presented as calm. After additional evidence was directed by the court, the Local Authority revised its recommendation proposing a Child Arrangements Order favouring the mother. Whilst this case was a helpful starting point in highlighting the difficulties faced by parents with autism, and the adjustments that should be made to facilitate full participation and fair decision-making, this guidance should be underpinned by training in professional sectors (e.g. with relevant officers at Local Authorities, and social workers assessing a parent’s capability to meet their child’s needs).

Financial remedy proceedings

There is no mathematical formula which tells the court how finances should be dealt with on separation. Judges exercise discretion, guided by the factors set out in Section 25 of the Matrimonial Causes Act 1973 (‘MCA 1973’), with the aim of producing a fair and equitable outcome for both spouses. These factors are the guiding principles in the mind of the parties and their legal representatives from the outset. (It is important to note that if the matter does not proceed to court and the finances are dealt with by way of a voluntary process, these are still the factors that guide family practitioners). We explore some of these factors which may be a relevant consideration of the courts where a spouse or child is neurodivergent below:

• any physical or mental disability of either ‘of the parties to marriage’(s.25(2)(e)) or ‘of the child’ (s.25(3)(c)) Neurodiversity would be more accurately described as a developmental condition rather than a mental disability, and it is important to acknowledge that the language in this statute is outdated. Nonetheless, this is a helpful starting point to show that a spouse or child’s neurodiversity is a relevant factor in determining how finances are divided with. Medical evidence would likely need to be obtained to confirm a diagnosis (whether produced voluntarily or ordered by the court).
• ‘the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future’ (s.25(2)(b)) and ‘the financial needs of the child’ (s 25(3)(a)). A spouse or a child being diagnosed with a developmental condition may lead to increased financial needs, due to the additional costs of medication, private healthcare, specialised services (such as occupational therapy), supportive tools or technology. Children with developmental conditions may require additional paid educational support services aside from school including tutoring, or special educational programmes. The caregiving parent of a neurodivergent child may need to account for that additional time and resource into managing their child’s condition.
• ‘the income, earning capacity….which each of the parties to the marriage has or is likely to have in the foreseeable future’ (s.25(2)(a)). Despite the benefits that neurodiversity brings to a workplace, some individuals face huge obstacles entering and remaining in the workplace, which may reduce their income and earning capacity long-term. Clear evidence would need to obtained to support this, including examples of job applications, workplace policies, and any evidence difficulties in the workplace etc.
• ‘the contributions which each of the parties has made or is likely in the foreseeable future to make, including any contribution by looking after the home or caring for the family’ (s.25(2)(f)). The contributions of a spouse who was the primary ‘care-giver’ for neurodivergent children was explored in the 2017 case Chai v Peng. Here, the husband argued that he had made a ‘special’ contribution to the family (he was the chairman of Laura Ashley at the time), and that this contribution should warrant a departure from an equal division of the matrimonial assets in his favour. The judge found that ‘it must usually follow that the harder the entrepreneur breadwinner had to work at his business, the more the responsibility of childcare and domestic infrastructure would have fallen to the home-making wife.’ Interestingly he noted that this was particularly the case here where one of the children has Tourette’s syndrome and the other is on the autistic spectrum. The judge balanced the husband’s special contribution against the wife’s contribution in the home (judged as substantial due to the increased needs of her children), and concluded that there is ‘no room for a reduction from equality’. This is a helpful example of the courts taking heed of neurodivergent children’s increased needs in favour of the ‘care-giver’ spouse, when balancing the contributions of the homemaker and the breadwinner when deciding the division of assets.

Whilst the language in the legislation may be outdated, the above shows that there is an established framework for a spouse or child’s neurodiversity to be fairly considered for when determining how the family’s finances are divided on divorce.

Is court the best route for this?

In our previous blog (here) we explored the practical ways in which family law practitioners and the court can support neurodivergent individuals through family law proceedings, but also addressed the limitations of traditional court proceedings which are difficult and draining for anyone, perhaps more so for neurodivergent individuals. It is important to note that court’s resources are stretched and a judge may not be able to devote the time required to engage with the intricacies of a parent or child’s neurodiversity – which may lead to this being overlooked.

If feasible, alternative routes to resolving disputes, such as mediation, collaborative law, arbitrations and private financial remedy hearings can offer a more tailored environment. This is not just less stressful, but the practitioner would also be able to devote more time to understanding and accounting for the family member’s specific needs.

Conclusion

The family justice system is equipped with a legislative framework where a spouse or child’s neurodiversity is fairly accounted for in decision making, both in children and financial remedy proceedings. To best assist the court, early identification of any condition is key to obtaining the relevant evidence (whether that is medical evidence of a condition, a social worker taking heed of relevant conditions before preparing their report in child arrangements proceedings, or evidence of financial needs or change in earning capacity). Given the constraints on the family courts, it may be worth considering alternative dispute resolution methods for the reasons referenced above.

By better understanding the different needs of neurodivergent individuals, family professionals can seek the right tools and support, and we can ensure fair and inclusive proceedings for all, fostering a justice system that truly serves every individual's needs.

further information

If you have any questions about the topic of this blog,  please contact a member of our team of family and divorce lawyers.

about the author

Lavanya is a trainee solicitor at Kingsley Napley and is currently in her third seat with the Dispute Resolution team. Lavanya spent her first seat in the Regulatory team, where she primarily assisted in advising regulated professionals and students who are subject to investigations and disciplinary proceedings, particularly in the legal and finance sectors. She has experience assisting on complex internal investigations conducted on behalf of corporate clients. Lavanya also investigated and prepared fitness to practise cases relating to professional misconduct on behalf of the Health and Care Professions Council and the Teaching Regulation Agency.