With increasing awareness of neurodiversity across the UK, more adults and children are being diagnosed with conditions such as autism and ADHD. This rise has left many families wondering how the family courts take neurodiversity into account when making decisions about children and finances. This blog explores how the family justice system considers neurodiversity during child arrangement disputes and financial remedy proceedings.
Child Proceedings and Neurodiversity
The overriding principle in any decision involving children is the child’s best interests. The Children Act 1989, specifically Section 1, provides a welfare checklist which guides the court’s decision-making. For neurodivergent children, key factors include:
- The child’s wishes and feelings
- Their physical, emotional, and educational needs
- The likely impact of any change in circumstances
An example is the case of Re K, L & M where a 15-year-old autistic child was at the centre of a child arrangement order. The court found that the father’s emotional instability and history of violence were detrimental to the child’s well-being, especially considering his heightened sensitivity due to autism. This resulted in the court restricting direct contact between the father and child until adulthood, highlighting how neurodivergent needs can significantly influence outcomes.
When assessing a child’s views, courts often instruct Family Court Advisers (FCAs) or Independent Social Workers (ISWs) to produce a Section 7 Report on the child’s welfare. It is essential that the appointed expert has experience with neurodivergent children to ensure assessments and recommendations accurately reflect their unique needs. CAFCASS, the statutory body advising the court, has issued guidance on supporting children with autism and specific learning difficulties, underlining the importance of tailored approaches.
Considering Parents’ Neurodiversity
A parent’s neurodivergence also plays a vital role when courts decide child arrangements. One welfare checklist factor is the ability of each parent to meet the child’s needs. Early identification and disclosure of a parent’s neurodivergence are critical to avoid misunderstandings or unfair judgments about their behaviour or communication style.
The case D and E (Parent with Autism) demonstrates this well. A mother diagnosed with autism mid-proceedings was initially facing the removal of her children by the local authority. Many of the concerns stemmed from behaviours related to her autism rather than parenting deficiencies. After further assessments, the local authority revised its position, favouring the mother’s care. This case underscores the need for awareness and training among professionals to ensure fair treatment of neurodivergent parents.
Neurodiversity in Financial Remedy Proceedings
Financial matters following separation or divorce do not follow a strict formula. Judges have discretion, guided by the factors in Section 25 of the Matrimonial Causes Act 1973 (MCA 1973), aimed at achieving fairness for both parties. These factors include:
- Any physical or mental disability of the parties or their children. While neurodiversity is more accurately a developmental condition rather than a ‘mental disability,’ this statutory language still allows courts to consider it. Medical evidence is usually necessary to verify diagnoses.
- Financial needs and responsibilities of the parties and children. Neurodivergent individuals or children may require additional financial support for treatments, therapies, special education, or assistive technologies.
- Income and earning capacity of each party. Despite many neurodivergent people thriving in work environments, some face challenges that affect their employment and earning potential. Evidence such as workplace records and job applications can support claims here.
- Contributions made by each party, including caregiving. The case Chai v Peng highlighted how courts acknowledge the increased caregiving demands placed on parents of neurodivergent children. The court upheld the homemaker’s substantial contribution, balancing it fairly against the breadwinner’s financial input.
The family justice system has established mechanisms to ensure neurodiversity is properly factored into decisions concerning children and financial settlements. Early recognition and disclosure of neurodivergent conditions are vital to present accurate evidence and facilitate fair outcomes. Given the pressures on courts, families might also consider alternative dispute resolution options, which can be more flexible and less adversarial.
By increasing awareness and understanding of neurodiversity within family law, professionals can better support the distinct needs of individuals, fostering a justice system that is both inclusive and equitable for all.
Zubair Dharamsi Gowsigan Gnanakumaran Maisa Riazi
Partner Solicitor Legal Assistant
zd@roselegal.co.uk gg@roselegal.co.uk mr@roselegal.co.uk
