As every lawyer in the land will confirm, the law can be a slow moving beast, sometimes taking many decades to catch up with changing social realities. Witness the rapid rise of cohabitation over recent decades. Couples who live together without marrying are now the fastest growing family type in the UK, but there is still no law recognising such relationships in England and Wales.
Sometimes the legal anomalies which come to light mean inconvenience or loss for a few and sometimes they mean genuine tragedy. Earlier this month I heard about a case that fell firmly into the latter category: Kerrie Backhouse, who lives in Cumbria, had lost her son Kye at the age of just 13. Even more tragically, he had died because his father inexplicably gave him a morphine tablet saying it would cure his headache. The father was jailed for manslaughter but, to Kerrie’s distress, he refused to allow Kye’s ashes to be released for burial.
The ashes lay stranded in the funeral home for more than a year. Despite his conviction, in law, without a grant of probate, Kerrie’s ex-partner retained an equal say over the funeral arrangements. Kerrie could not afford a lawyer and I could not allow that to continue. So we agreed to help her pro bono.
I asked our probate expert Jane Gray to see what she could do and, thankfully, we were able to unravel the knot and obtained for Kerrie a sole grant of administration, so the father’s permission was no longer required and Kye’s ashes could finally be laid to rest.
Kerrie’s case was one of the many that now fall into the gaps between legal aid provision. She did not qualify for public assistance under the current regime but she could not afford to hire a lawyer to resolve her situation, and so things stagnated and she could do nothing. When the government slashed legal aid to the bone, I wonder if it ever really considered the possibility of cases like this, when a genuine need for justice hits the immovable force that the Legal Aid Agency has become? Perhaps it did, and just did not care. More likely, given recent pronouncements, it hoped to rely on the goodwill of lawyers willing to work pro bono.
Last year, newly appointed Justice Secretary Michael Gove urged law firms to ‘look into their consciences’ and do more pro bono work, dropping heavy hints about legislation and a levy on lawyers.
Of course, many law firms do undertake pro bono work – and I am proud that Stowe is one such firm. As lawyers, we have the power to do much good for those genuinely in need. But our resources are limited and we have businesses to run and demands to be met. Pro bono work can only ever be a patchy and peeling sticking plaster on an increasingly dire situation. Should a just society rely on what is essentially charity to deliver access to something as crucial as justice for the vulnerable? I really believe the answer is no. Justice is and must remain a fundamental human right.
Update: Kerrie Backhouse, sadly, passed away on January 28
This article was first published by Solicitors Journal on 12/01/16, and is reproduced by kind permission.