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Understanding Selective Mutism & adapting legal proceedings

Green speech bubble on yellow background, inside the bubble are three dots, indicating a pause.

October is Selective Mutism Awareness Month. This month, we published a new edition of the Accessing Justice Podcast. In the latest episode, intermediary, Demi, interviews speech & language therapist Susannah Thomson about all things Selective Mutism (including the fantastic work of SMIRA, the Selective Mustism Information & Research Association). Demi has also produced a blog, exploring the topic in more detail, considering its possible impacts in legal proceedings and sharing some strategies which can assist court users with selective mutism (SM) – which legal professionals can use. Take a listen and read more below:

What is selective mutism?

Selective mutism is a condition in which individuals are unable to speak in certain situations. The situations in which the person may be unable to speak vary. For some, it may affect them in public settings, or around professionals, for others, it may impact their communication with relatives or specific people in their lives. Selective mutism is thought to be an anxiety disorder. Although it can impact adults, it is believed to be more common in children and often arises during childhood.

In this post, we will be exploring selective mutism, its possible impact on court users, alternative communication approaches and strategies to facilitate communication with someone who has selective mutism during legal proceedings. 

Although many adults have selective mutism (including a number of court users who work with an intermediary), research into the condition overwhelmingly focuses on selective mutism in childhood. The following are facts and statistics arising from this research:

  • Selective mutism is thought to be an anxiety disorder. This can mean a person is unable to speak in certain social situations, such as with classmates at school or to relatives they do not see very often.
  • Selective mutism affects about 1 in 140 young children. It’s more common in girls and children who have recently moved to a new country.
  • Research suggests that there is no single cause for the condition. However, psychologists believe that factors such as, emotional, psychological and social experiences can impact the condition (Johnson & Wintgens, 2001).
  • Those with Selective Mutism will speak in some situations e.g., at home but remain consistently silent in others (court proceedings). They may have a blank expression or appear ‘frozen’ when expected to speak (Goodman & Scott, 1997).
  • It is important to know that people with Selective Mutism often want to speak but, due their anxiety and other factors, they feel physically unable to do so.
  • Although research focuses on selective mutism in childhood can also persist into, or arise in, adulthood. Currently there are no statistics to indicate how many adults experience Selective Mutism. However, it is noted that less than 1% of the overall population experience Selective Mutism.

Common selective mutism presentations:

Selective Mutism presents differently in each individual. However, there are some common symptoms and presentations which may be seen in people with the condition. They may:

  • Find it difficult to look at you when they are anxious – they may turn their heads away and seem to ignore you. You might think that they are not engaging, but this is often not the case. Instead, they are likely to be having difficulty responding.
  • Not smile or look blank or expressionless when anxious – in court, for example, they may be feeling anxious much of the time and it may, therefore, be challenging for them to express themselves non-verbally.
  • Move stiffly or awkwardly when anxious, or if they think that they are being watched.
  • Find it very difficult to answer to questions asked of them, or to say hello, goodbye or thank-you – this may appear rude, but it is not intentional.
  • Be slow to respond in any way to a question (including when using alternative communication strategies – see below).
  • Worry more than other people.
  • Be very sensitive to noise, touch or crowds.
  • Be intelligent, perceptive and inquisitive.
  • Be very sensitive to the thoughts and feelings of others.
  • Find it difficult to express their own feelings.
  • Have good attention skills.

Impact in legal proceedings

For court users with selective mutism, communicating, engaging and participating in legal proceedings can be particularly challenging. Communication is essential to effective participation, from giving instructions to a solicitor, to giving evidence in the courtroom. When court users face a ‘communication gap’ they may be unable to tell their legal team when they disagree with a point of evidence or ask questions about an aspect of their case they do not understand.

There are also many specific stages in different legal proceedings when selective mutism may result in difficulties with participation. For example, in criminal proceedings, individuals are expected to address the court to state their date of birth, name, address and plea. For an individual with Selective Mutism, this may not be possible verbally. Meanwhile, for unrepresented parties (e.g., in a private family case), there are even greater demands upon communication in the courtroom itself, in the absence of an advocate to speak on their behalf.

It’s also important to note that, for some people with selective mutism, meetings with professionals (e.g., their solicitor or the guardian in care proceedings) and being in a formal court setting, discussing emotive topics or great personal significance, are likely to increase anxiety which can exacerbate selective mutism symptoms. This may make it particularly challenging for individuals to communicate verbally and regulate their emotions during legal proceedings.

Alternative communication at court

simple communication cards (Yes, No, Don't know, Break please)

In order to support an individual with selective mutism to communicate at different stages in proceedings, alternative communication strategies are often necessary. For example, an individual selective mutism could:

  • Tell the information to a trusted communication partner they feel able to speak to. The communication partner can then repeat the information verbatim to the court (or in conferences with the individual’s legal team).
  • Write their response on paper to be shared or read aloud by a nominated person.
  • Write their response on a whiteboard to be held up.
  • Type their response on a laptop. This could be screenshared within the court (so responses can be seen in real time on screen), shown in conferences, read aloud by a nominated person, or read through text-to-speech software (see below).
  • Type their response using a CVP, Teams or Zoom chatbox during a remote or hybrid hearing or meeting.
  • Type their response using a smartphone (this may be a preferred option for court users who are not used to typing with laptops, or who have literacy difficulties – as many phones use predictive options). This could be read aloud by a nominated person.
  • Use gesture or visual aids, if they are unable to read, write or speak to a trusted person (e.g., “Yes”, “No”, “Don’t know”, “Please repeat” cards which the individual can point to). Here is a useful source of free, printable communication cards.

When identifying an alternative communication strategy, there are some important aspects to keep in mind:

  1. The strategy should accommodate the court user’s unique profile of skills, strengths and difficulties. For example, an individual with dyslexia may find hand-writing responses particularly challenging. Alternatively, an older person or individual who does not use technology routinely, may have difficulty using a laptop or smartphone to communicate.
  2. In the individual is giving evidence, the alternative communication strategy should be trialled in advance, to ensure the court user is able to use this method in the courtroom and feels comfortable doing so. Different settings can impact an individual with selective mutism differently and increased anxiety can play a significant role. A familiarisation visit to the witness box or location from which they will give evidence can prove helpful, allowing opportunity for a ‘test run’ (using neutral questions) and acclimatising the court user to the setting (which can reduce anxiety, thereby supporting more effective communication).
  3. If written communication is not possible (for example if the service user is unable to read or write), exploring whether there are individuals with whom they feel able to speak is an important step, as relying on gesture and resources like communication cards is likely to result in limited or unclear responses, which lack detail and clarity. In some cases, a court user may feel able to whisper to this individual, which can then be repeated. In others, they may feel able to speak with the individual in a private space. Their responses can then be written down or typed by the designated person, to be shared with the court user’s legal team or the court (depending on the stage of proceedings).
  4. It’s also important to consider the environment the individual is in, as increased anxiety can adversely impact communication of all types. For example, a person with selective mutism may feel better able to communicate during their evidence if permitted to do so from behind a screen or remotely. During conferences, a person with selective mutism may be unable to speak with their trusted person in front of their legal team, but may feel able to do so if seated in a private room, from which the designated communication partner can relay questions and responses (verbally or in written form).

Text-to-speech tools

If the court user is comfortable typing on a laptop. Text-to-speak software is available, which allows typed messages to be read aloud.

  • Natural Readers – A free text to speech website which can be used by anyone.
  • Speechify – A free website, allowing users to pick the voice and the speed of talking (also available as an app).

Case study

I once attended an assessment to assess a young defendant called Harry [names and indentifying details have been changed]. We met at his solicitor’s office, with his mother present.

When we first met, his mother asked if I knew about his conditions, and I explained I did not. She explained that Harry does not talk and that he has selective mutism. I asked his mum how Harry prefers to communicate, she confirmed that he likes to communicate through pen and paper, and I adapted the assessment process to suit his preferences.

Harry had diagnoses of anxiety, autism and selective mutism. On first meeting, he appeared anxious, he did not make any eye contact and he would use a fidget object that I provided throughout the meeting to assist with his concentration and emotional management.

We were able to complete the assessment using pen and paper. I would ask Harry a question and he would write his answer down. If I had to ask further prompt questions to elicit more information, this process was repeated. I began thinking about ways to make the process easier for him in court proceedings.

I worked with Harry at the first hearing following the assessment. I spoke to Harry and asked whether he would feel comfortable enough to write his answers down and for me to read these to court. Harry communicated that he was comfortable with this approach.  I was very conscious to involve Harry in the process. As he was unable to speak, it was extremely important that he still had a voice in the proceedings. I met with the legal advisor prior to the hearing and explained Harry’s condition and that he did not feel he would be able to speak in the court environment. I explained the strategies discussed with Harry and explored whether the court would accept the proposed approach. The legal advisor explained they were happy with this way forward and happy to make adaptions to allow Harry to participate.

As part of my role as an intermediary, I shared my recommendations with the court during a Ground Rules Hearing before the hearing commenced, to help Harry best participate throughout the trial.

The recommendations which were agreed in court included:

  • All counsel to refer to Harry by his first name, to aid his engagement throughout proceedings and reduce any feelings of anxiety.
  • Harry to be permitted to use a fidget aid, both in the dock and if giving evidence, to assist his concentration.
  • Harry to write his answers to questions down on paper to be read aloud to the court by the intermediary.
  • Any verdict to be read one line at a time, for me to go through this key information in real-time with Harry, to allow him to better understand the final decision.
  • Harry’s mum to sit in the dock, to aid with his anxiety (for emotional support purposes only).

The magistrates approved all of these measures.

Working with Harry more than once allowed me to build rapport with him, as the trial progressed he appeared increasingly comfortable and began to make some eye contact with me. Our communication improved as our rapport built. At times, he felt able to shake his head to indicate “yes” or “no”, which had previously not been possible. The adaptions to his trial allowed him to participate in the proceedings.

Tips and strategies when assisting someone who has selective mutism

  • Get informed. Selective Mutism is a very rare condition and there is a lot of information out there to assist professionals to better support individuals with Selective Mutism. Some useful sources include:
  • Take your time. It is important that an individual with Selective Mutism does not feel pushed or rushed to make decisions. They may need extra time in court proceedings, so you are able to ensure they have a good understanding of proceedings and of any key decisions that need to be made.
  • One size does not fit all. Ensure any adaptations you suggest or implement are person-centred. Take time to when and how the individual is best able to communicate. Talking to those close to them may support your understanding. Use this information to identify adaptations tailoer to the individual (for example, do not suggest texting if the person will not be able to use this strategy), to help ensure they can participate in the best possible way.
  • Encourage non-verbal communication such as, pointing, nodding shaking of their head. Do not try to get them to speak.
  • Look out for phrases such as ‘I don’t know’. This may mean they haven’t understood the question, don’t know how to answer, or simply want to move on. Spend additional time checking understanding, to ensure important information has been processed and retained accurately.

Cited Sources

Maggie Johnson & Alison Wintgens (2001) The Selective Mutism Resource Manual. Speechmark Publishing Ltd.

Robert Goodman & Stephen Scott (1997). Child Psychiatry, Blackwell Science.