The former Chief Justice said parents were being deprived of their human rights by having to fight to have contact with their children without a lawyer.
David Neuberger said cuts to legal aid in family matters were an affront to human rights and “cutting legal aid for family disputes is wrong in principle”.
Since 2013, parents participating in private child arrangements hearings have been unable to access a state-paid lawyer, regardless of their means, unless there is an allegation of abuse. Legal aid is always granted in public cases where the State requests the care of children.
Neuberger, who served as Chief Justice of the United Kingdom until 2017, said in an interview with the Guardian: “In this increasingly complex world where the laws are almost always more complicated, particularly for a non -lawyer. You have to give people access to legal advice, you have to give them access to the courts with a lawyer to represent them. And this is also true when it comes to divorce and children.
“It is almost shameful to grant them human rights without then giving them the opportunity to enforce those rights. Rights only make sense if they can be enforced.
Neuberger said legal aid needed to be better funded again after cuts by successive governments, the biggest of which were implemented by the Conservative-led coalition. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspo) abolished all legal aid in private family law cases, except where there is an allegation of abuse.
Neuberger said providing more free legal advice would also save money by keeping so many cases out of court.
“They have cut legal aid in many family cases, which they see as a smart way to cut costs. I suspect it’s the opposite, because with competent lawyers you settle cases and tell clients not to be so stupid, whereas if they are on their own they don’t know what is stupid and sensible, so They fight.”
In 39% of all private family law cases in 2023, neither party was represented. There is also concern about the high number of cases in which only one parent has a lawyer, creating a risk of injustice.
Neuberger said preventing access to lawyers also risks harming the justice system itself. “If people increasingly feel that they have not received a fair deal, we will see a lack of confidence in the judicial system. And it’s pernicious.
“Law and order not only involves a good justice system that is objectively good, it also requires a system that people have confidence in. And I think that justice is not served if you are someone who loses a trial and feels that their trial is not really fair because no one was there to explain to you your rights, to explain to you what you should do and represent yourself. .”
Commenting on the crisis in the criminal courts, which the Guardian reported on, he said: “I have a feeling we are in a bad place. I think we might be in a danger zone.
He added: “How much longer will people have to wait for their trial to take place? How much are we going to increase the sentences by then? How many more prisoners will we have to release early? How many more prisoners will come back after being released because we did nothing to try to rehabilitate them? At what point do you say we have such a long delay, such prison overcrowding that the system is broken?
Neuberger faced controversy last year after serving on the Hong Kong court of final appeal panel that unanimously rejected an attempt by Jimmy Lai and six other pro-democracy activists to overturn the convictions for participating in a peaceful demonstration in August 2019.
He defended his work in Hong Kong, which he has done since 2010, and said he intended to return there for another four-week stay, which he usually does once every 15 months .
“The Chinese do not interfere with the judges. From what I can see, they respect judicial independence and I have no evidence to the contrary. I think that, given that they are in this position, the judges deserve to be supported, not weakened by leaving,” he said.
He said the situation would change if he saw evidence of interference. “I would feel like I wasn’t doing Hong Kong any good by leaving and I should support them, as long as I can. If the Chinese government or the Hong Kong government started to interfere in one way or another in the decisions of the Court, it would be different.”
Neuberger resigned from his role as chair of the Media Freedom Coalition’s legal advisory board last year, citing “concerns expressed” about his role in the wake of the Lai ruling.
In defending the decision in Lai’s case, Neuberger said, “Jimmy Lai’s decision was about something that happened before the Chinese came.” It was based on a British law that he had broken. It was based on our Public Order Act of 1986. It was the law, and whether Jimmy Lai was a good guy or a bad guy, he committed an offense and he broke the Public Order Ordinance, and as a judge, you are not there. To decide whether someone is good or bad in a criminal case, on appeal you will decide whether they were rightly convicted.”
A Ministry of Justice spokesperson said: “It is crucial that people are able to access support when they need it and we want families to get the best outcomes as quickly as possible.
“This is why we are testing a model that offers a more child-centered approach to private family law cases, with a prior assessment of their needs and wishes. We also promote mediation to allow families to resolve issues outside of the courtroom where appropriate, providing up to £500 to cover costs.
theguardian