By Scott Halliday, Associate Solicitor, Family Law.
During Autism Acceptance Week, I want to reflect on the issue of how autistic parents can be understood properly by the Family Court system, to ensure that they are understood, and able to give their best evidence. I’ll also be considering what special measures can be put in place to help them. I reflect predominantly from the perspective of a parent in Children Act proceedings, but realistically much of what follows has crossover to divorce and financial matters. That said, I have most often seen the below points come to life in the context of contested Children Act matters where parents disagree on future arrangements for children and or specific issues such as schooling or relocation of children.
There is no doubt that parents involved in Court proceedings related to their children are often at extremely low ebb. It is usual for parents to be distressed and anxious to protect their children and ensure that their best interests are met by way of a Court Order. It is imperative that parents involved in the Family Court feel heard and understood when dealing with matters pertaining to their children.
This is especially true in matters where a parent is autistic.
The Family Court process is inherently adversarial. The Court must often understand the lived reality of parents and children before making final decisions, having heard from parents with competing views. In cases where parents cannot agree a way forward then evidence by way of witness statement and cross examination is an integral feature of the Court process. Although many parents are keen to resolve matters away from the Court, unfortunately this is not always possible.
In such circumstances, the stakes are high and parents are under pressure, often being cross examined by experienced barristers about their position and proposals for children.
Autism is experienced differently by each parent. If parents tell their solicitor that they are autistic at the outset, then their solicitor can support them and ensure that the Court makes sensible adjustments and truly understands the parent.
It is essential that the Court (and indeed solicitors) understand how a parent is likely to communicate and respond in a Court setting, especially if a parent gives evidence in person to the Court. There has to be an acceptance that autistic parents may interact with the Court during the evidence process in a manner which is different, but it is not indicative of the parents parenting style, the quality and validity of what they say and how therefore the Court is to digest that evidence and make decisions about children.
There is a real concern that without the Court being aware of this and sensibly managing matters that parents could be misunderstood.
The Court will clearly place some weight on a parent’s demeanour and the way in which they engage with the Court in the evidence giving process. The Court is alive to the need for some caution when Judges are assessing parents and evidence. In a recent case the judge said:
“…the presence or absence of emotion or distress when giving evidence is not a good indication of whether a person is telling the truth or not…”
The above is highly relevant for autistic parents especially, who need support and to be authentically understood by the Court if they are required to provide evidence in Court proceedings. Autistic parents need to be understood and the quality of their evidence understood properly.
There must be an acceptance that autistic parents may find the Court process extremely traumatic and the way in which they interact with the Court as a result should not be misconstrued in matters where parents disagree on future arrangements for children or are re-living historically traumatic events. The Court must be aware that the parent is autistic and measures are required to ensure fair process and an effective hearing. The Court must be mindful for example of the need for regular breaks, for hearings to proceed at a sensible and fair speed, and for questions to be put in a dignified and realistic manner.
It should also be flagged that parents’ response to examination must not be misconstrued, for example an autistic parent may struggle to make effective eye contact throughout examination and/or make noises or have a quick change of body language. Behaviour like this is not a sign that a parent is providing inaccurate information to the Court or that they are not trustworthy.
Behaviour like this could be a clear sign that a parent is struggling with the process and/or a self-regulating response to a very difficult dynamic. The Court must be mindful of this and act accordingly. If a parent and Solicitor have a transparent and open conversation early in a matter it can be invaluable and ensure the parent is supported effectively.
Autistic parents must have access to clear, considered advice and, crucially, be confident that they are understood. There needs to be a fair playing field for autistic parents. The Court must embrace this fairly and not disregard autism. It is a factor that parents and solicitors need to be alive to and comfortable in sharing so that the Court can properly deal with cases.
Autistic parents must have access to clear, considered advice and, crucially, be confident that they are understood. There needs to be a fair playing field for autistic parents. The Court must embrace this fairly and not disregard autism.