The former president of the supreme court has said parents are being deprived of their human rights by having to fight for contact with their children without lawyers.
David Neuberger said legal aid cuts to family cases were an affront to human rights and that “taking away legal aid from family disputes is wrong in principle”.
Since 2013, parents in private child arrangements hearings cannot access a state-funded lawyer, no matter what their means, unless there is an allegation of abuse. Legal aid is still given in public cases where the state is applying to take children into care.
Lord Neuberger, who was president of the UK supreme court until 2017, said in an interview with the Guardian: “In this increasingly complex world where laws are almost always more complicated, particularly to a non-lawyer, you need to give people access to legal advice, you need to give people access to courts with a lawyer to represent them. And that’s equally true when it comes to divorce and children.
“It’s almost disgraceful to give them human rights and then not give them the ability to enforce those rights. Rights aren’t meaningful unless they can be enforced.”
Neuberger said legal aid needed to be better funded again after cuts by successive governments, the deepest of which were implemented by the Conservative-led coalition. The Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) 2012 abolished all legal aid in private family law cases unless there was an allegation of abuse.
Neuberger said that providing more free legal advice also had the potential to save money by preventing so many cases from coming to court.
“They’ve taken away legal aid from lots of family cases, which they think is a clever way of cutting costs. I suspect it does the opposite, because with competent lawyers, you settle cases and tell the clients not to be so stupid, whereas if they’re on their own, they don’t know what’s stupid and sensible, so they fight.”
In 39% of all private family law cases in 2023, neither party was represented. There are also concerns about the high number of cases where only one parent has a lawyer, creating a risk of injustice.
Neuberger said that preventing access to lawyers also risked undermining the justice system itself. “If people increasingly feel they haven’t had a fair deal, you’re going to get a buildup of a lack of confidence in the justice system. And that’s pernicious.
“Law and order involves not just having a good justice system that’s objectively good, you need one in which people have confidence. And I think that justice is not seen to be done if you are somebody who loses a case and feels you didn’t really have a fair trial because nobody was there to explain your rights, explain what you should be doing, and to represent you.”
Commenting on the crisis in the criminal courts, which the Guardian had been examining, he said: “I do feel that we are in a bad place. I do feel we could be in a danger zone.”
He added: “How much longer are people going to have to wait for their trials to come on? How much are we going to increase sentences by this time? How many more prisoners are we going to have to let out early? How many more prisoners are going to come back after they’ve been released because we did nothing to try and rehabilitate them? At what point do you say we have such a long delay, we have so much overcrowding in prisons that the system is broken?”
Neuberger faced controversy last year after sitting on the panel of Hong Kong’s court of final appeal which unanimously dismissed a bid by Jimmy Lai and six other pro-democracy activists to overturn convictions for taking part in a peaceful protest 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 stint, which he typically does once every 15 months.
“The Chinese do not interfere with the judges. They respect judicial independence, as far as I can see, and I have no evidence to suggest otherwise. I think that, given that they are in that position, the judges there deserve support, not to undermine them by leaving,” he said.
He said that position would change if he saw evidence of interference. “I would feel that I was not doing Hong Kong any good by leaving and I should be supporting them, so long as I properly can. If the Chinese government or the Hong Kong government started interfering with the decisions of the court in some way, it would be different.”
Neuberger resigned from his role as chair of a legal advisory board to the Media Freedom Coalition last year, citing the “concern expressed” over his role after the Lai ruling.
Defending the decision in Lai’s case, Neuberger said: “The Jimmy Lai ruling was to do with something that had happened before the Chinese moved in. It was based on a British-based law, which he had breached. It was based on our Public Order Act 1986. That was the act, and whether Jimmy Lai is a good guy or a bad guy, he committed an offence and he breached the public order ordinance, and as the judge, you’re not there to decide whether somebody is good or bad in a criminal case, on an appeal, you’ll decide whether he was 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.
“That is why we’re piloting a model which provides a more child-centred approach to private family law cases, with an upfront assessment of their needs and wishes. We are also promoting mediation for families to resolve issues outside the courtroom, where appropriate, by providing up to £500 towards costs.”
