As family law practitioners, we play both a legal role and, inevitably, an emotional one. In cases involving brain injury, this dual responsibility is heightened.
Brain injury can change people: personality, behaviour, insight, and cognition can all be altered as a result of the injury, not by choice. The partner they once knew may present differently, and the relationship dynamic shifts in ways neither party anticipated. When these relationships break down, as research suggests around 75% will, family proceedings raise complex and overlapping legal issues.
In this article, we look at the key challenges family practitioners face in these cases.
Why relationships break down after brain injury
Relationships take an immense toll following a brain injury. A person’s life and relationships are often changed for good.
Headway, the brain injury association, exists to promote understanding of all aspects of brain injury and to provide specialised support and services to ensure that survivors and their families can live well. Their 2024-2029 strategy highlights the urgent need for increased awareness and better access to services.
As family law practitioners, we share that responsibility. When a client comes to us for advice, it’s essential that we recognise the injured partner’s changed behaviour stems from the injury itself, not from choice, that their needs may have fundamentally changed, and that we provide advice and support with this in mind. This understanding must inform how we conduct proceedings at every stage.
Encouraging an amicable approach
An amicable approach to proceedings acts as a safeguard. The brain-injured party is inherently vulnerable. Adversarial proceedings can cause confusion, distress, and re-traumatisation. A combative process benefits no one here.
We must be committed to a constructive, non-confrontational approach in all cases, but with brain injuries this commitment takes on added weight. Non-court dispute resolution, including one couple one lawyer, collaborative law, and mediation should always be considered where capacity allows. Where it doesn’t, the involvement of a litigation friend and careful case management can still ensure proceedings are conducted in a way that minimises harm to all parties, including children caught in the middle.
The move to no-fault divorce helps to remove any form of blame that may previously have been assigned in the past to changed behaviours. This allows these divorces to proceed with the dignity they demand.
Capacity – the central challenge
No two brain injuries are the same, and there’s no blanket approach to the issue of capacity of the injured party.
Under the Mental Capacity Act 2005, capacity is decision-specific and time-specific. A person may have capacity one day but not the next, or for one decision but not another. For brain injury survivors, capacity can fluctuate with cognitive function, fatigue, and insight, meaning it must be kept under review.
The capacity to approve a compromise warrants particular attention. The client must have insight into what the compromise entails, the ability to instruct solicitors, an understanding of that advice, and the ability to weigh it before reaching a decision. For brain injury survivors, these requirements can present real challenges, even where the person appears to function well in other areas of life.
MAP v RAP [2013] EWHC 4784 (Fam) reminds us that consent orders must be approached with care. We have a duty to notify the court if there are concerns about capacity. A compromise by a protected party isn’t valid unless approved by the court and if proceedings are settled without recognising incapacity, they can be reopened, as confirmed by the Supreme Court in Dunhill v Burgin [2014] UKSC 18.
We must also remember that capacity is issue-specific. A person may manage daily decisions yet lack the capacity to conduct complex litigation, as confirmed in TB v KB [2019] EWCOP 14 and HC v FW [2017] EWHC 3162. We must not assume that functioning in one area equates to capacity across all decisions.
Financial remedy – protecting the brain injury survivor
We must carefully consider the injured party’s needs, both immediate and long-term. Financial provision in these cases goes beyond dividing assets; it must account for the reality that a brain injury survivor may require lifelong care, rehabilitation, and support.
In HC v FW [2017] EWHC 3162 (Fam), the injured party’s needs were assessed in two categories, general reasonable needs and specific needs arising from her medical condition, under s.25(2)(e) of the Matrimonial Causes Act 1973, which requires the court to have specific regard to physical or mental disability. The case reminds us that personal injury damages aren’t automatically ring-fenced and that non-matrimonial assets can be accessed where needs demand it. The method of capitalising future care costs matters.
Robust expert evidence from medical and care professionals must be before the court to ensure the survivor’s long-term needs are properly met in the way they were designed to.
Children
Where children are involved, their welfare remains paramount. A brain injury doesn’t automatically mean a parent is unsafe or incapable of maintaining a meaningful relationship with their child.
Arrangements must be flexible and tailored, whether that’s supported contact, supervision, or indirect contact. What matters is that the child’s relationship with the brain-injured parent is preserved wherever possible. An amicable, child-focused approach, in line with Resolution principles, is essential in these cases.
Conclusion
Brain injury cases in family proceedings demand more of us than routine practice. They require specialist knowledge, sensitivity, and a collaborative approach with multiple professionals to achieve outcomes that truly protect the vulnerable.
Clarke Willmott are proud to be supporting Action for Brain Injury Awareness Week. For those supporting brain injury survivors and their families, help is available. Headway’s free helpline (0808 800 2244) offers guidance and support.
Please call 0800 422 0123 to speak to one of our family law team or get in touch online.
Co-written by trainee solicitor, Ellie Dyer
