Neurodiversity and the welfare checklist

When considering arrangements for children in England and Wales, the court’s ‘paramount consideration’ is the child’s welfare. The Welfare Checklist provides the framework for this assessment, requiring careful consideration of factors such as the child’s wishes and feelings, physical, emotional and educational needs, and the likely effect of any change in circumstances. For neurodivergent children, these factors take on heightened significance: a neurodivergent child’s communication styles, sensory needs and responses to change may differ markedly from neurotypical peers, meaning that professionals and judges must ensure appropriate adjustments and expertise are applied when interpreting the checklist.

a) The ascertainable wishes and feelings of the child (considered in light of their age and understanding)

Neurodivergent children may communicate differently, using non-verbal cues, or needing extra time to process questions. It may also be more difficult for a neurodivergent child to quickly build a rapport with Cafcass. Care will need to be taken to ensure that the child’s “understanding” is not underestimated simply because they express themselves atypically and if there is concern that the Cafcass officer may not have the time or resources to be able to do the in-depth work needed, thought should be given to appointing a specialist independent social worker to prepare any court report. 

b) The child’s physical, emotional and educational needs

Conditions such as autism or ADHD often involve sensory issues, emotional regulation challenges, and specific learning needs. Special consideration will need to be given to each child’s needs and how the arrangements for their care and education can be managed in a way that promotes their welfare. If the child has an EHCP this is often a crucial document for the court to consider.

Uncertainty during parental separation can be unsettling for children. Changes in living arrangements, routines and relationships can create anxiety and insecurity. For neurodivergent children these challenges can feel amplified and unmanageable. Predictability and routine often provide a sense of safety, and disruption can lead to heightened distress and can manifest as behavioural difficulties. As such it is particularly important to consider what additional support neurodivergent children may need to manage future transitions and maintain stability, or to find ways for difficult transitions to be reduced. 

c) The likely effect on the child of any change in their circumstances

For neurodivergent children, even small changes such as a different morning routine or evening meal could have a big impact on their day-to-day wellbeing. Sensory sensitivities, communication differences and reliance on familiar environments can mean that sudden or poorly managed changes can be overwhelming.

The court will need to consider how to plan and support change, if it is going to happen, for example directing a gradual transition supported by visual schedules and involving familiar support figures to reduce stress. 

d) The child’s age, sex, background and any characteristics of theirs that the court considers relevant

Neurodiversity is a key characteristic and is increasingly given special consideration by the family court. Cultural and familial attitudes towards neurodiversity and family support networks can also be important. The court will need as much evidence as possible about each individual child’s needs, presentation and history to be able to ensure that this is appropriately factored into any decision.

e) Any harm which the child has suffered or us at risk of suffering. 

Harm can include emotional trauma from environments that fail to accommodate neurodivergent needs, or from misunderstanding behaviours as “naughty” rather than neurological. If parents can work together to support and understand their child’s behaviour and needs, the better the longer-term outcome is likely to be. In circumstances where this is not possible the child is at a higher risk of harm and the orders the court makes will need to take this into account. If necessary, the court may need to involve an expert to assess the risk of harm through a neurodiversity-informed lens.

f) How capable each of the child’s parents […] is of meeting their needs

Although the court will not micromanage the parenting styles of each parent, it is crucial that both parents are able to meet the needs of their neurodivergent child consistently. If one parent has provided more of the child’s day-to-day care in the past, they may need to support the other parent with how best to manage the child’s needs once they are living apart. Differences in opinion regarding the child’s diagnosis and how this is best managed can become a huge barrier for separating parents. This is particularly stark as the child adapts to going from living with both parents, to living between two houses. 

Therefore, it may be important for either or both parents to receive some professional input to equip and support them to meet the needs of their child. The family court will often evaluate parenting capacity with consideration of willingness to learn and access resources not just current knowledge. 

How we can help

At Irwin Mitchell, the family team has a wealth of experience in managing and progressing complex children matters. We understand the difficulties and nuances of caring for neurodivergent children and can work with you to make positive steps towards an agreement that keeps your child’s welfare paramount and also works for you.

Our lawyers will listen to your situation, consider the welfare checklist alongside your child’s unique needs, and help you navigate the process with sensitivity and expertise. Some examples of putting the checklist into practice for neurodivergent children could be:

• Working with you to develop a parenting plan that promotes gradual transitions to cater to your child’s needs;
• Helping you to work out clear, consistent communication regarding your child’s needs in light of separation; and
• Connecting you with the right professionals to support you with understanding and meeting your child’s needs.

Conclusion

The welfare checklist is vital tool in family law, and, for neurodivergent children, additional considerations around emotional needs and the impact of change are essential. By assisting you in tailoring arrangements to your child’s individual needs, we can help you to ensure that decisions truly reflect what matters most to you, and the court - your child and their welfare.

If you have related to anything in this article, please do not hesitate to get in touch with a member of our Family Team in the Complex Children Team of Excellence - we would be happy to assist you.

Key contacts

• Jennifer Pollock (Partner) - head of the Complex Children Team of Excellence.
• Article by Catriona Ellis (Solicitor) and Emalie-Mei Sint Nicolaas (Trainee Solicitor) - members of the Complex Children Team of Excellence.