Neurodiversity in Family Law
By Winnie Chow, Collaborative Practitioner, Partner of CRB
https://www.crb.com.hk/en/winnie-chow
April is Neurodiversity Celebration Month, and the United Nations General Assembly having declared 2 April as World Autism Awareness Day.
Neurodiversity refers to the natural neurological differences in brain function and the processing of information. These differences influence emotion, learning, attention, communication and social interaction. Common examples include autism, ADHD, Tourette’s syndrome, dyslexia and dyscalculia, to name a few.
It is estimated that 20% of the global population is neurodivergent. In Hong Kong, the 2020 Census and Statistics Report recorded Hong Kong’s autism population at 22,400 individuals – which is approximately 0.3% of our population of approximately 7.5 million people. However, the reality may be much higher, given the lack of awareness, biases, discrimination and stigma that exist.
Within the realm of family law, it is not uncommon to encounter neurodivergent parties whose needs are often overlooked or misunderstood. Dealing with a family breakdown is inherently traumatic, but the impact of stress can be particularly intense for a neurodiverse person. They may respond to stress differently, experience situational communication shutdowns and their tolerance to sensory input may be compromised, so they are more easily overwhelmed.
It is incumbent upon legal professionals working on the frontline with families in need, to have some basic awareness at least and knowledge of neurodivergent traits and how a neurodiverse party may present themselves in stressful situations. Creating an affirmative environment and offering inclusive and bespoke access to support is critical to ensure a fair process and meaningful participation for all parties concerned. Simple adjustments can significantly improve communication, enhance comfort and interactions for a neurodivergent individual.
Parties should be encouraged to share any support or accommodation they require, to cater for their needs early in the process. These may include adjustments related to sensory needs ( such as lighting, sound, fabrics or smells), triggers points, preferred mode of communication (loud/soft volume, fast/slow pace of speech), language used, availability of visual aids, duration of each session, or allowance for movement (eg. space to move around or breaks to be provided). Often, the accommodation sought can be easily provided for, and simply require sensitivity to natural differences in how individuals best process information and respond to situations.
If a party to the proceedings is neurodiverse, their condition should be disclosed as early as possible so that the Court, the legal representatives and any other professionals involved are cognizant of the differences. This would help to ensure that their traits, behaviour and communication style are considered in context, and not unfairly misconstrued against them.
Further, when dealing with the finances, the neurodivergent condition of a party may be a relevant factor if it means the condition creates certain needs, such as medical expenses, specialist therapies and support costs (such as occupational therapy, speech therapy, supportive tools etc.). It may also be a factor for consideration if the severity of the neurodivergent condition or limitations on one’s earning capacity creates employment opportunities.
Early recognition and understanding of the neurodivergent condition of a parent is also important in children proceedings, as parental capacity to care for a child is a major consideration in considering whether a child’s needs are met. Interviews conducted with that parent and/or the environment in which the neurodivergent parent gives evidence must also be considered and fairly catered for, to ensure fair and proper participation by that parent.
When making care arrangements for neurodivergent children, there should to be a heightened recognition and understanding of the children’s specific and often atypical needs to ensure any arrangements for the children are geared towards their best interests. When ascertaining the children’s wishes and feelings, (which is an integral part of any consideration in a child matter), the child’s neuro-developmental condition(s) should be identified and again, made known as early as possible so that the appropriate accommodations can be made by the parents and any professionals involved in the process.
Where the children are expected to start spending time in each of their parent's homes, careful planning of the transition and sensitivity to the child’s needs and traits are essential. While neurotypical children may manage well with duplicate sets of belongings in each home, some neurodivergent children exhibit rigidity and thrive on strict consistency. For them, changes can trigger significant distress and upset and they can become inconsolable and in extreme circumstances, self-harm as a reaction to a change.
In such situations, certain items may simply need to travel with the child and shared between the 2 homes rather than being duplicated in each home. For example, if a child has sensory needs particular to noise, and their favourite headphones provides a security and comfort mechanism, then those favourite headphones should be made available to accompany the child between the parents’ homes. If the child has tactile needs and likes a certain set of beddings or clothing, those should be shared, unless identical sets are fully tolerated by the child and can be provided for them in each parent’s home.
If there is a third party carer whose assistance provides significant and beneficial support to the child, consideration should also be given to allowing that carer to accompany the child between the two homes, where appropriate.
If a neurodiverse child needs to meet with the Social Welfare Officer or participate in an interview for a psychological report for Court purposes, the professional should be informed well in advance to enable them to prepare. This will ensure they are able to adopt the right tools, set the right environment and make adjustments to enhance the success of the meetings, to help minimize, if not avoid altogether, potential triggers which might cause anxiety or distress.
Given the high-stress, tense environment and often uncontrollable nature Court proceedings, out of Court Dispute Resolution processes may be particularly appropriate in cases in which there are neurodivergent individuals involved. One might instead look to the many out of Court Dispute Resolution Processes that are available in Hong Kong, including Collaborative Practice, mediation, child inclusive mediation, Private Financial Adjudication, and Parenting Coordination, to name a few. These processes allow for greater flexibility, and are designed to adopt a more bespoke approach, so consideration can be given to different needs, and required pace and format in processing of information. This in turn can lead to more efficient and less emotionally and financially costly outcomes than that of traditional litigation.
Ultimately, neurological differences are a natural part of human variation, not a deficit. We are all on a broad spectrum of cognitive, neurological and developmental needs. It is high time for greater awareness acceptance, and respectful accommodation of this diversity within our legal system and society as a whole.
This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with above.
