Frances Harris – Reflections on the FJC Guidance on Neurodiversity in the Family Justice System
2nd Apr 2025 | Blog
Neurodivergence appears finally to be getting its turn in the spotlight. In January of this year the ‘Family Justice Council Guidance on Neurodiversity in the Family Justice System for Practitioners’ came out. As a mother to two neurodivergent children and a family law practitioner who is often taken aback at quite how poorly understood neurodivergence is in the family courts this made for very exciting reading. Finally, there is a document that has all of the key information in one place, that comes with the FJC seal of approval, that can be shared with colleagues and referenced in position statements to Court. The document is sensitively and intelligently drafted from a neurodiversity affirming stand point: stressing that neurodivergence signals a different way of being in the world not a lesser way and it is full of practical accommodations to consider.
I recently had the privilege of representing an autistic mother in private law proceedings concerning her autistic daughter. She is also an academic specialising in the female presentation of autism and we have remained in touch. I e-mailed her about the latest guidance which she had spotted and she replied:
I welcome the guidance on neurodiversity in the family justice system however, I will be interested in whether it works in practice. I think all barristers need specific training in neurodiversity. I have recently had a terrible time with the barrister who is working on our civil claim against the LA, who was very dismissive about my experiences as an autistic mother within the family court system. He had no understanding of autism and wasn’t willing to try and understand either. Unfortunately, I hear this a lot from other autistic people.
These words encapsulated many of the thoughts I have myself had. I am genuinely delighted by the FJC’s guidance and the recognition that there is a need for it but I’m also acutely conscious that as family law practitioners our inboxes are regularly flooded with new protocols, guidance and case law and wonder if those who are most excited about this new guidance are those who, like myself, have long recognised the need for it whilst for many others it may remain unread waiting for a quiet moment that never comes.
In this short article I wanted to touch upon some of the issues pertaining to autism I have seen crop up in my own cases. There are no easy one size fits all solutions I can offer to the reader but I think what is incumbent upon us as family law practitioners is to try our hardest to ask our clients the right questions, to really listen to their responses and not to be dismissive of their experiences.
Labels – Help or Hindrance?
This is a controversial question. In the context of private law children proceedings it is mostly likely to arise when parents are considering whether a diagnosis should be pursued for a child or are coming to terms with a diagnosis that has already been made. The issues that I have seen first hand are:
- A reluctance to pursue diagnosis from a voiced belief that a ‘label’ will be used as an ‘excuse’ for certain behaviours and bring to an end any attempts to curtail/support/manage the behaviours (e.g. attendance at school or at contact);
- Reluctance to accept the label itself.
From my own parenting journey and the shared accounts of many other parents of autistic children I would make the following observations:
- The ‘right’ label is, in my opinion, almost always better and more helpful than the wrong label. By which I mean I have not yet met an autistic child who had not, prior to their diagnosis, given themselves (or been given by others) negative labels e.g. ‘anger management issues’ ‘depression’ ‘odd’ ‘rude’.
- Difficulties often arise because of persisting stereotyping and stigma around autism: a lack of understanding as to what it is and what it isn’t. The difficulty comes in that to be effective the label needs to be properly understood: currently a wealth of stereotypes and myths continue to cling to it that need debunking. There often seems to be little by way of education and follow up support provided following diagnosis and the onus is on the parents to do their own research. At this juncture it is not uncommon that there be a parting of ways between parents with one parent keen to proactively understand what autism is and put all the correct supports in place and another struggling to accept the diagnosis at all with consequent tensions.
- Fears that a label may act as an excuse while common and understandable are, I believe, often ill-founded. Understanding what is going on with the child and the ‘why’ behind the behaviour is much more likely to lead to effective and supportive strategies being put in place. Moreover, it may be that the right thing for the child is for parental expectations to be let go / reconsidered. By way of concrete example, a parent may feel that family meal time is sacrosanct and a child should join their family at the table every night which is an entirely understandable parenting goal but in the context of a child who has masked all day at school and reached capacity may not be a realistic or fair expectation to set every evening when they need time out and away from stimuli and demands to decompress and recharge. This letting go of expectations is difficult for any parent but likely amplified in the context of separated parents struggling to communicate and going through stressful private law proceedings.
Psychoeducation
In situations where one parent has accepted the diagnosis and taken steps to educate them selves about their child’s particular profile and needs whilst the other remains in denial the tensions are unsurprising. I was involved in a case in which this was stark. The Mother was the primary carer to her 8 year old son. She described him as a ‘runner’ and had to keep a tight hold of his hand whenever out in public in case he ran off: she believed he might come to serious harm if in the unsupervised care of his father who did not share this view. The Father painted a contrary picture to the Court that the Mother was being unduly restrictive of their son’s freedom and that she was overly anxious and controlling. In fact, during a contact session with the Father the Mother had to be called to collect him from the park as the Father could not persuade him back to the car. The Mother arrived to see her son running off towards the busy main road at full pelt and was able to get to him just in time. The Father had failed even to notice that he had begun to run. The boy was thankfully okay. There are no easy solutions to propose but I would make the following observations:
- In this case the section 7 report recommended the Father engage with psychoeducation work. There is an important saying ‘if you’ve met one autistic person, you’ve met one autistic person’ and I cannot stress enough that every autistic individual will have a different profile and set of needs. This means that generic and inexpensive free courses on autism (if such can be found) may not be super helpful but are at least a starting point. Where the clients are able to afford it, identifying and working with a professional who has good knowledge of the individual child is likely to be more productive. There are also a wealth of free resources and I often find myself recommending Instagram accounts of autistic adults or parents of autistic children as an easy way to receive daily bite size information which can be a more realistic way to absorb information than being presented with a long reading list when already beyond capacity.
Professionals Involved
In the case above I pushed for the section 7 report to be completed by a Cafcass officer with expertise in autism. This request failed and I followed up a with a request that the allocated author of the section 7 report state their qualifications in respect of autism at the outset of the report. We were met with a paragraph that told us how long the author had been in practice and emphasised the wide variety of cases she had handled: from which I gathered she had no particular expertise (personal or professional) and, more importantly, no concept of what she didn’t know.
FLANC are working on an initiative to provide compulsory training to family law professionals including Cafcass officers but until this is in place I think we have to accept that it is a lottery. I have met Cafcass officers who themselves are parenting neurodivergent children and ‘get it’ and I have met others who think they know all there is to know whilst very obviously peddling out dated stereotypes as to what autism is and sitting in judgment of parents whose learned expertise (particularly in relation to their own child’s particular profile) far exceeds their own.
It may be, where finances permit, that in such cases an ISW with particular expertise would be of greater assistance.
Autistic Parents
I have focused on the autistic child so far. The research is clear that autism runs in families and if there is an autistic child there is a high chance that one of the parents is autistic (whether or not this has been diagnosed and quite often it is the latter). I strongly suspect this is in part why one parent so often struggles to accept the diagnosis as either at some level it would be to recognise that their own difficulties may be due to underlying neurodivergence or they cannot see the issues as the behaviours that lead to diagnosis were ‘normal’ within their household growing up. There is of course another group and that is parents like my former client quote above who have embraced their own and their child’s diagnosis. There is a huge amount I could write on this topic but the key points I would wish to underscore are:
- There may be issues as to whether a client wishes to disclose their own diagnosis within proceedings or as to how best to disclose (if the other parent is aware of the diagnosis then there is often a fear it may be weaponised and used against them);
- Where a client is diagnosed autistic then the FJC guidance is clearly essential reading as to how best their needs can be advocated for and accommodated. FLANC has an excellent ‘All about me’ document on their webpage that may be a useful starting point when working with certain clients and can be appended to statements or position statements.
- Court proceedings are incredibly stressful for any parent but are likely even more so for the neurodivergent parent. They are likely to feel incredibly judged and almost certainly are being judged by the professionals and judges involved. It is possible/probable that the stress of the proceedings will impact their behaviour at Court and I think it can be important to underscore for the Court that their presentation at Court is likely a result of the environment they find themselves in and does not reflect how they present when parenting within their home.
In Conclusion
Read the FJC guidance but beyond that be curious, ask questions, listen.
Frances Harris
2025
