Misunderstood Minds: How the Justice System Fails Neurodivergent Children 

By: Maham Abbas 

Maham is a 2nd year law student and aspiring commercial solicitor, currently working in schools with SEND children. 
 

Imagine standing in a courtroom at 13 years old. The language is confusing, the environment overwhelming, and no one has asked whether you process the world differently. For many neurodivergent children in the UK, this is the reality of encountering the criminal justice system. 
 
Neurodivergent children are substantially underrepresented at every stage of the system. This reflects treatment by institutions that were not designed with their needs in mind. 
 
80% of children cautioned or sentenced within the Youth Justice system have Special Educational Needs and Disabilities, the statutory category covering additional learning, physical and mental health needs. Children with SEND constitute 19.5% of the school population but are found to enter custody at earlier stages, receive longer sentences and reoffend at higher rates. Over 60% of children in custody are estimated to have speech, language and communication needs, which directly affect their capacity to understand legal processes, including charges or court orders. 
 
Children with SEND are five times more likely to be permanently excluded from mainstream education than other pupils; children permanently excluded are twice as likely to commit serious violence within a year compared with those who were only suspended⁵. Exclusion removes structured support and protective adult relationships that reduce offending risk while also limiting access to specialist interventions that might address underlying needs. 
 
Delayed diagnosis stacks these difficulties. Waiting times for autism and ADHD assessments frequently exceed two years, meaning children reach adolescence undiagnosed and without the reasonable adjustments and protections that would arise under the Equality Act 2010. Early identification remains limited due to insufficient training in schools and the lack of coordinated services capable of early intervention. 
 
When these needs go unrecognised, behaviour is often interpreted as misconduct. Research drawing on the experiences of neurodivergent children in custody describe a system that continuously labelled them as ‘stupid, bad or naughty’. Across decision points, from exclusion panels to youth offending teams, unmet needs are processed as culpable conduct. 
 
Once children enter the justice system, around two thirds held on remand ultimately do not receive a custodial sentence. For neurodivergent children, difficulties understanding bail conditions can make breach a foreseeable outcome rather than a deliberate choice, yet the system routinely treats it as the latter. A 2024 study found that due to a lack of basic training around SEND, police officers often overlooked neurodivergence when communicating with children or in their decision-making around diversion. The same study identified limited specialist training among solicitors and appropriate adults supporting children in police stations. The youth justice board has also noted that neurodivergent behaviour may be misinterpreted by professionals, increasing the likelihood of arrest and reducing opportunities for diversion. 
 
Court proceedings present further barriers. The 2021 Criminal Justice Joint Inspection identified “serious gaps, failings and missed opportunities at every stage” in the treatment of neurodivergent individuals within the criminal justice system, with over a fifth unable to understand their own proceedings. Increasing numbers of children with complex needs are tried in the Crown Court, where there is no compulsory training for judges working with children with SEND or neurodivergence. The Family Justice Council’s guidance noted that failure to identify and accommodate neurodivergence may breach Article 6 ECHR, the right to a fair trial. The Court of Appeal has affirmed that sentencing children requires a fundamentally different approach from sentencing adults, including consideration of learning difficulties and communication needs. Despite this, Section 9 reports, through which local authorities provide background information about a child, are not routinely requested even where custody is being considered. 
 
Access to justice concerns extend beyond criminal proceedings. Legal aid is largely unavailable for SEND tribunal cases, leaving families to challenge local authority decisions without representation while authorities are supported by specialists. In practice, legal aid is obtainable only through exceptional case funding, which requires demonstrating a likely high breach of Article 6 rights, a threshold widely regarded as prohibitively high. 
 
Funding constraints also affect representation within the criminal courts. The Sieff Review recommended a 15% uplift in legal aid rates for youth cases, recognising the expertise required. It also proposed separate payment structures for youth court advocates and the use of certificates for counsel in complex cases, but these proposals remain largely unimplemented. 
 
Many necessary reforms do not require primary legislation. The Equality Act 2010 requires reasonable adjustments for disabled people, including within the justice system. Where needs go unidentified or legal support is unavailable, this duty cannot operate in practice. 
 
Legal aid practitioners are the first to recognise these failures and press for correction. If they lack resources to do so, the issue is no longer whether neurodivergent children possess legal rights, but whether the justice system is prepared to ensure those rights can genuinely be exercised. 
 

Sources

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RCSLT. ‘Speech and Language Therapy in the Justice System’. https://www.rcslt.org/speech-and-language-therapy/where-slts-work/justice/  

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Rosie Cornish, Iain Brennan, Exclusion from School and Risk of Serious Violence: A Target Trial Emulation Study, The British Journal of Criminology, Volume 65, Issue 6, November 2025, Pages 1221–1240, https://doi.org/10.1093/bjc/azaf015  

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