There is a growing awareness and understanding of neurodiversity in the Auckland, and during this growth, there has been a notable rise in adults and children being diagnosed with conditions like autism and attention-deficit/hyperactivity disorder (ADHD) in particular. It is estimated 15 – 20% of children and young people in the Auckland are neurodivergent.
This social shift has left parents and families navigating the family justice system asking questions about how their spouse or child’s neurodiversity will factor into the court’s decision-making process. This blog will focus on if and how the family justice system accounts for a parent or a child’s neurodiversity in Children Act Proceedings.
How does the court make welfare decisions for neurodiverse children?
Going back to basics, we are all very aware that the court’s paramount consideration when making any decision relating to the care of a child is what is in the child’s best interests.
The courts refer to section 1 of the Children Act 1989 which sets out the ‘Welfare Checklist’ to assist in determining the issues. The most relevant factors from the Welfare Checklist, if your child is neurodivergent, will include:
- Wishes and feelings
- Physical, emotional and educational needs
- The likely effect of any change in circumstances
This is set out in practice in the case of Re K, L & M (children) (child arrangement orders), where the subject child was 15 years old and had been diagnosed with Autism. The court, in this case, found that the Father was unable or unwilling to understand how his turbulent emotional state could confound and upset his child, and there was a history of violence by the Father against the child.
Due to this, the Court made a rare order for no direct contact between the father and the children until the child reached the age of 18 due to the exceptional circumstances relating to the father’s behaviour, the child’s emotional needs and the heightened need for safeguarding and certainty due to his autism.
A child’s diagnosis of a neurodevelopmental condition would and should be carefully considered when ascertaining their wishes and feelings. If the court determines the need for a Family Court Advisor or an Independent Social Worker to prepare a Section 7 Report, then it is important that the individual appointed has the necessary expertise in working with neurodiverse children and that any conditions are identified as early as possible.
The reason for this is that this may impact how the expert appointed interacts with the child to better understand their views and/or to inform them of any additional challenges the child may face (an example being that if there is a drastic change to their current contact routine).
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.
How is a parent’s neurodiversity taken into account?
A parent’s neurodivergence is just as important and relevant when determining child arrangements, the relevant factor within the Welfare Checklist for this to be considered 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 also important that a parent’s condition is flagged to the court as early as possible to ensure the court fairly understands the position before making its decision and does not misunderstand the parent’s behaviour or communication to their disadvantage. This is highlighted in the 2020 case D and E (Parent with Autism).
A mother of 5 children was diagnosed with autism part way through the proceedings. The Local Authority had reached a decision that two of her children be placed for adoption, two placed in the care of their grandparents, and one placed in long-term foster care. It is important to note that many of the features of the mother’s presentation which concerned the Local Authority were features of autism.
Following additional evidence being directed by the Court, the Local Authority revised their recommendation proposing a Child Arrangements Order favouring the mother.
Comment
This area is becoming more and more recognised with there being many cases and support paths for parents and children going through the Family Courts. In general, the family justice system is equipped with a legislative framework where a parent or child’s neurodiversity is fairly accounted for in decision-making in Children Act Proceedings.
To assist the court, early recognition of any condition is vital to obtaining the relevant evidence. However, it is equally important to note that the court’s resources are strained, and a Judge may not be able to devote the time required to engage with the details of a parent or child’s neurodiversity, which may lead to this being overlooked. Therefore, it is always extremely important to look at alternative routes to resolving disputes, such as mediation, collaborative law, and arbitration, which can offer a more tailored environment.
How can we help?
Rina Mistry is a Senior Associate in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children’s law, children matters and domestic abuse.
If you need further advice on the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates.
For more information or advice, please call Rina or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.
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