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Autism and Child Arrangement Disputes

Louise Desrosiers, Barrister, of Lamb Building describes the issues which need to be considered in child arrangement disputes involving children who are on the autism spectrum.

Louise Desrosiers, barrister, Lamb Building













Louise Desrosiers, Barrister, Lamb Building

Estimates suggest there are 700,000 people with Autism Spectrum Disorder (ASD) living in the UK.  Anecdotal reports have placed the divorce rates of couples with autistic children as high as 80%.  Therefore it is no surprise that family law professionals are increasingly involved in child arrangement disputes between parents of autistic children. In this article I shall focus on the issues which need to be considered in such cases. Since I hope that it will be useful not only to practitioners but also to parents, I have explained some legal processes and principles with which practitioners, of course, will already be familiar.

Since guidance can be found for criminal practitioners dealing with ASD, it is perhaps surprising that there has been no published guidance for court professionals managing family cases.  Further, due to legal aid reforms, many parents now find themselves with no legal representation in court and are reliant on the judge alone to understand their situation.

ASDs vary widely; whilst children on one end of the spectrum can have more obvious cognitive and physical difficulties, higher functioning individuals' socio-emotional functions can be subtly impaired and often go undiagnosed.  Children may instead present as 'difficult'.  Further, such 'difficult' behaviour can be incorrectly blamed on an inability to parent.  In child arrangement disputes this can become magnified, with the resident parent being accused of obstructive behaviour and the non-resident parent of failing to look after, connect or bond with the child. 

Parents or spouses of individuals with ASD may appear neurotic, depressed, or exhausted simply due to the effort they extend to cope with the emotional, physical and financial strain of  a child with ASD.  Moreover, parents rarely receive validation or support from professionals or the public.

So, if a parent who has a child on the autism spectrum or suspects that their child may have an ASD, finds him or herself in court with an ex-partner, what can they do to prepare for court proceedings? And what advice can a legal representative offer?

Diagnosis and reports
If the parent suspects that their child has an ASD, the child is currently undergoing an assessment and/or has a diagnosis, it is important to highlight this to the legal representative or the judge at the start of proceedings.  Orders can be made which delay proceedings until an assessment has been undertaken and assist in obtaining the same.

Psychological, medical and/or educational reports identifying the level of impairment and strengths of the child should be considered.  These may include psychological or medical reports, individual education plans, a child's educational statement and updates from treating clinicians or teachers and therapists within the child's school. 

Reports from the Children and Family Court Advisory and Support Service (Cafcass) are often ordered in family proceedings.  Cafcass operates within the law set by Parliament and under the rules and directions of the family courts. Its role is to: safeguard and promote the welfare of children; give advice to the family courts; make provision for children to be represented; and provide information, advice and support to children and their families. 

Where there is a dispute between the parties Cafcass can be ordered to prepare an independent report.  The main problem with these reports is that many of the practitioners who compile them may not have sufficient training and expertise in ASD.  Many parents discover this too late, after a report has been compiled, when it can be obvious that the child's presentation is misunderstood.  It is helpful at the early stage in proceedings, if such a report is ordered, to (a) (if available) ask for a Cafcass officer with experience of ASD to undertake the report and (b) set out very clearly some of the questions you would like the Cafcass officer to address, such as routine, food allergies, over stimulation, etc.

Non-parental advocate
Children with an ASD may also benefit from a non-parental advocate such as a guardian.  This can be beneficial in cases where it may be difficult for the professionals to recognise which parent is advocating for the best interest of the child. If appointed, the child(ren)'s guardian is not a "neutral" party or participant.  When appointed under the Family Procedure Rules ("FPR") the guardian has a duty to safeguard the interests of the child and to present an independent view of the best interests of the child.  Depending on the severity of the disagreement between the parties, the allegations made by them of the other parent and the extent of the difficulties faced by the child, it may be helpful to suggest appointing a guardian.  The appointment of a guardian is not guaranteed and each case will be based on its own individual characteristics.

Child's developmental age
In any dispute about the arrangements made for a child post-separation, a child's age can be a good indicator, taken along with other factors, as to a child's ability to cope with arrangements imposed by a court.  Children with an ASD can function at a lower developmental age than actual age. Arrangements regarding the child may therefore need to be based on the child's developmental age.  Time should be allowed for revision of arrangements as they progress.  It is not enough to set the developmental age at the outset of proceedings and then assume it will increase from that point on chronologically.  There may be leaps in development as well as stagnation and this requires flexibility and regular updates from professionals.  It may be unwise for legal professionals to make assumptions about an autistic child's capabilities or competence based on age alone.

Parent education
Orders for parental education such as attending the Separated Parents Information Programme and Domestic Violence Perpetrator Programme are not uncommon in family law cases.  However, when dealing with a child with an ASD, any parent who has not already been heavily involved in the day to day care at the time of separation may need input to assist with the child's parenting.  Having solo primary responsibility for one or more autistic children who may require constant supervision may present new challenges and stresses for the parent.  Courses to help parents when looking after an autistic child can be found through the National Autistic Society (www.autism.org.uk) and it may be prudent to attend a hearing with dates, times and costs of upcoming courses which may assist, for instance, a parent seeking contact with an autistic child.  Examples of courses are the Early Bird or Early Bird Plus Programme(s) associated with NAS and the Cygnet Programme associated with Barnardos.  Alternatively these courses could help both parents avoid potential misunderstandings and/or court hearings if a diagnosis of ASD has just been made in respect of a child.

Clauses to include in court orders
Specific clauses are impossible to suggest without knowing more about the circumstances of any one case, but generally clauses may be included to address potential autistic behaviour that could prevent the parent with charge of the child from otherwise fulfilling an agreement reached between the parties or imposed by the court.  For example, whilst the child may not be flexible in terms of routine, the order can allow flexibility for the parents to accommodate unplanned circumstances such as a meltdown due to stress.

Children with an ASD might need more time to adjust after transitions between the parents and timescales can reflect this, not just for the child but also for the parent receiving the child.

The need for routine in children with ASD may vary, but will require a level of extensive cooperation between parents.  If not there may be, even with the best of intentions, strikingly different routines which could confuse an autistic child with a severe need for consistent structure. 

Visual diaries, calendars and timetables could be used to ease transition and improve predictability for the child.  Widgit is a company that is commonly used by schools and a number of apps are available to produce easy to understand timetables and visual stories for autistic children.  Being prepared with printed timetables for suggested contact can be a way to assist legal professionals and demonstrate to a judge that, for instance, a resident parent, does not wish to obstruct contact, but that is actively thinking of solutions to assist the transition of contact for the child.

Other siblings
There may be other autistic or neuro-typical children to consider.  When developing a schedule of contact, one may wish to take account of the fact that these children may need time with both parents alone, as an autistic child can be demanding and take much of the lone parent's attention.

Other issues
Other factors such as hygiene and safety should not be ignored.  For example, autistic girls may find puberty and menstruation overwhelming and contact schedules may need to be scheduled to reflect the monthly cycle.  Individuals with an ADS may pose a greater danger to themselves and others due to a tendency to become self absorbed.  It may not be sufficient for a child to make their own way home from school due to a lack of road safety awareness.  A non-resident parent may not accept the severity of a diagnosis in a high-functioning child and in situations like this it might be useful to stipulate precisely what is expected of that parent to ensure the safety of that child.

The key to a successful outcome in court proceedings for a child on the autism spectrum is to remember that being well prepared at the hearing can have a significant impact on how the case progresses.  It is also useful to appreciate that separated parents may have different hopes, parenting styles and experiences of the child's autism.  This does not mean that both should not be able to have a good relationship with the autistic child, but both parties may have to work hard to find solutions to overcome difficulties which are not present in other family law cases.

A list of legal practitioners with experience of autism can also be found on the NAS website.

29/9/15