Autism, Family Courts And Fairness 

Published on 23 May, 2023 | Emma Hubbard

Fairness is one of the fundamental principles of law.

That applies both to ongoing proceedings – whether they’re in court or not – and any orders or agreements which might arise from them.

It is something which those presiding over cases are regularly reminded of – for example, by the Judicial College, which organises training for judges and magistrates in England and Wales.

The College produces something known as the Equal Treatment Bench Book, a publication which “aims to increase awareness and understanding of the different circumstances of people appearing in courts and tribunals” (https://www.judiciary.uk/wp-content/uploads/2023/04/Equal-Treatment-Bench-Book-April-2023-revision-2.pdf).

The latest edition explains almost from the very start that “treating people fairly requires awareness and understanding of their different circumstances” to avoid any semblance of inequality.

One of the circumstances identified in the Bench Book as possibly impacting on the fairness of proceedings is that of mental health.

It notes that “much mental disability is not visible, or is visible only in some contexts”, something which can lead to misunderstandings.

Although not always apparent, the wider incidence of one of the neurodiverse conditions mentioned in the Bench Book – autism – gives some indication of the potential impact on the court system.

According to the British Medical Association, the professional body representing doctors in the UK, some 700,000 children and adults across the country have been diagnosed with autism (https://www.bma.org.uk/what-we-do/population-health/improving-the-health-of-specific-groups/autism-spectrum-disorder).

Data from the NHS shows how obtaining a diagnosis is in itself not a rapid process. In fact, in December last year, 140,000 individuals were awaiting an autism assessment – a 40 per cent increase on 2021 (https://digital.nhs.uk/data-and-information/publications/statistical/autism-statistics/january-to-december-2022).

Those delays can create problems right across the court system but are arguably most acute in family courts, which deal with pressing considerations such as the well-being of children and how divorcing couples might divide their assets.

Information released by the Ministry of Justice (MoJ) shows how family courts are already handling growing backlogs (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2022/family-court-statistics-quarterly-october-to-december-2022).

Part of the reason why family cases now take so long to conclude is because of the strain experienced by the family court welfare service, Cafcass.

It has highlighted that its workload has increased over the last five years (https://www.cafcass.gov.uk/about-cafcass/our-data/). The net effect has been that proceedings now take far longer.

That can be a challenge for people – adults and children alike – who have not been diagnosed with a condition such as autism but the inherent anxiety can be even greater for those who have.

The pressures confronted by Cafcass have another practical implication. Its volume of work means that it might only have a very limited time to meet and discuss the matters at hand with adults and children involved.

That can limit the contribution that those with neurodiverse conditions are able to make and, in turn, risk Cafcass submitting reports which are not wholly reflective of the circumstances under scrutiny.

It is another illustration of how people with autism face particular difficulties and require particular support, and is something which myself and my colleagues in Hall Brown’s children’s law team are well aware of.

More than having practised as family lawyers for many years, several members of the team have very direct, personal experience of autism within our own families.

Such a background presents us with a unique perspective compared to other family law firms when it comes to handling cases in which neurodiversity is a central issue.

We know that it is vitally important to identify someone’s individual requirements as early as possible in a case, so as to avoid their possibly being at a disadvantage without prejudicing anyone else involved.

Essential preparation entails weighing up how a person with a neurodiverse condition interacts with proceedings. If they are to give evidence, should that be in person or by telephone?

In addition, does the timing of court or mediation sessions need to be changed? The Bench Book acknowledges that appearing in court can be “a daunting and unnerving experience”. As a result, some people may need attention breaks to compose themselves after questioning.

Would seeing the venue in advance help overcome any possible anxiety? Many courts will allow participants to make such visits with prior agreement.

Taking these and other factors into account can make dealing with family law matters less stressful and offer the prospect of expediting proceedings.

As the Bench Book makes clear, judges understand how important to put sufficiently flexible practices in place to enable people with neurodiverse conditions to be treated fairly.

Hall Brown is also incredibly skilled at ensuring that they have the best possible support on hand and our tailored approach has already worked to the advantage of many clients.

Of course, such empathy cannot avoid problems occurring in households across England and Wales, whether or not a family member is neurodiverse.

Neverthless, we can at least provide the sort of guidance and understanding capable of minimising the distress and discomfort to you and your loved ones while we work to find a solution to those difficulties.