The former Supreme Court chief justice said parents are being stripped of their human rights by having to fight for access to their children without a lawyer.
David Neuberger said cutting legal aid for family cases was an affront to human rights and that “taking legal aid away from family disputes is wrong in principle.”
Since 2013, parents undergoing private child arrangements hearings have been unable to consult state-funded lawyers in any way unless there are allegations of abuse. Legal aid is still provided in public cases in which the state applies for protection of children.
Mr Neuberger, who served as Chief Justice of the UK Supreme Court until 2017, said in an interview with the Guardian: We need to give people access to legal advice, we need to give people access to courts where they are represented by lawyers. And that applies equally to divorce and children.
“It's almost shameful to give them human rights and not give them the ability to enforce those rights. Rights are nothing if they can't be enforced.”
Mr Neuberger said legal aid needed to be re-funded after cuts were made by successive governments, with the most significant cuts being made by the Conservative-led coalition government. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspo) abolished all legal aid in civil family law cases unless there were allegations of abuse.
Neuberger said providing more free legal advice could prevent too many cases from going to court and save money.
“They've taken legal aid away from a lot of family cases because they think it's a smart way to cut costs.” “Don't do that,” but I suspect that if a lawyer is alone, they won't know what's foolish and what's wise, and they'll fight over it. ”
In 39% of all private family law cases in 2023, neither party was represented. There are also concerns that in many cases only one parent has a lawyer, creating a risk of unfairness.
Neuberger said blocking access to lawyers also risks undermining the justice system itself. “If people feel like they're not getting a fair deal, that's going to increase distrust in the justice system, and that's harmful.
“Law and order requires not only an objectively good judicial system, but a judicial system that people can trust. And when you lose a case, explain your rights and what to do I don't think justice has been served for people who feel like they didn't get a really fair trial because they didn't have anyone to explain and represent them.”
Commenting on the crisis in the criminal courts, which was being investigated by the Guardian, he said: I feel we may be in the danger zone. ”
Furthermore, he added: “How much longer will people have to wait for their trial to start? How much more are we going to increase their sentences this time? How many more prisoners will we have to release early? How many more prisoners will come back after they are released because no effort was made? At what point do we have such long delays, overcrowded prisons and a broken system? Is it?”
Last year, Neuberger unanimously rejected a Hong Kong appeal by Jimmy Lai and six other democracy activists to overturn their convictions for participating in peaceful protests in August 2019. He appeared before a court committee and caused controversy.
He defended the work he has done in Hong Kong since 2010, saying he would normally return to the city once every 15 months for an additional four-week stay.
“The Chinese do not interfere with judges. As far as I know, they respect the independence of the judiciary and there is no evidence to suggest otherwise. “I think he deserves support, and I don't think he's weakening the judge by resigning,” he said.
He said his position would change if he saw evidence of interference. “I don't think leaving Hong Kong will be of any use to Hong Kong, and I think we should support Hong Kong as much as possible. If the Chinese government or the Hong Kong government starts interfering with the court's decisions in any way, then the situation will be It will change.”
Mr Neuberger resigned from his post as chairman of the Media Freedom Coalition's legal advisory committee last year, citing “concerns expressed” about his role in the wake of the Rye decision.
Mr. Neuberger defended the judgment in Mr. Lai's case, saying, “Jimmy Lai's judgment relates to something that happened before the Chinese immigrated. It is based on British-based law, and he It was a violation,” he said. It was based on the Public Security Act of 1986. That is the law, and whether Jimmy Lai is a good guy or a bad guy, he committed a crime and violated the public order ordinance. You, the judge, are not there. To determine whether someone is a good or bad person in a criminal case, it is up to an appellate court to decide whether he was justly convicted. ”
A Ministry of Justice spokesperson said: “It is important that people have access to support when they need it and we want families to get the best possible outcome as soon as possible.
“That is why we are piloting a model for private family law cases that proactively assesses children’s needs and wishes and provides a more child-centred approach. We also promote mediation, offering up to £500 in costs to help families resolve their issues outside of court.”
