Article 39 threatens legal action to protect teenagers in care

Article 39 children’s rights charity has today (29 April) formally written to the government threatening legal action to protect the rights of 16 and 17 year-old children in care.

In February, the Department for Education announced the outcome of its consultation on the use of unregulated accommodation for children in care and care leavers. This confirmed the Education Secretary’s decision to ban local authorities from putting children aged 15 or younger in these flats, bedsits, hostels and foyers. The same protection has been denied to thousands of 16 and 17 year-old children in the care of local authorities, leaving them without any adult care and very limited adult supervision.

Changes to care planning statutory rules are due to come into force at the beginning of September.

The government’s own data shows that only around 100 children aged 15 and younger will benefit from these changes, whereas at any one time around 6,000 children aged 16 and 17 who are looked after by local authorities are living in unregulated accommodation. These are children of compulsory education and training age. Nearly a third (29%) are the subject of a care order where a local authority has parental responsibility for them. Around 4 in 10 children living in unregulated accommodation were put there by local councils within a week of entering care.

Investigations by BBC Newsnight, the Guardian newspaper, Sky News and other media outlets, as well as a review carried out by the Children’s Commissioner for England, have exposed the serious harms suffered by 16 and 17 year-olds in unregulated accommodation. The Children’s Commissioner found that children in care “frequently” live in these settings “alongside vulnerable young adults (usually up to 25 years) battling with their own difficulties, including those struggling with homelessness, mental ill health, addiction, or even transitioning from prison back into the community”.

Probing by Article 39 has revealed that four children aged 16 and 17 died, and three children were harmed, in unregulated accommodation between April and September 2020. The Department for Education was notified of these serious incidents by councils themselves. After completing an inquest into the death of a 17 year-old boy, a coroner wrote to the Education Secretary in December 2019 to prevent future deaths of children aged 16 to 18. The coroner summed up: “The lack of statutory regulation is placing vulnerable young people at risk, and there is a realistic possibility that deaths may occur”.

Following a Freedom of Information Act request, earlier this month Article 39 obtained all of the responses to the Department for Education’s consultation, finding that many more organisations and individuals than the government acknowledges are deeply concerned about the care and protection of 16 and 17 year-olds in care. This includes young people with direct experience of living in unregulated accommodation as children. The Department for Education commissioned two academics to analyse consultation responses but excluded from that process the views and experiences of 165+ young people, the majority of whom had been in care.

Article 39’s Director, Carolyne Willow, said:

“What parent would countenance withdrawing care from children at the age of 16, as they enter and complete their crucial final year at school? This is a heartless change to the law, which is not founded on any evidence that children stop needing adult care and supervision from their 16th birthday.  

“It is deeply depressing that we are having to threaten the government with legal action if it does not honour the principles and provisions of the Children Act 1989 and the United Nations Convention on the Rights of the Child, which do not discriminate between children on the basis of age. 

“Children are being shunted into unregulated accommodation, the majority of which is run for profit, as a default option because of the national shortage of caring homes. It’s the government’s job to sort this for children, by properly resourcing local authorities and having a national strategy, but instead ministers have made the smallest change possible. If left unchecked, this change to the law gives the green light to local authorities to discriminate against 16 and 17 year-olds in their care. It’s the first time government has tried to put into law age-based placement decision-making for children in care. It defies everything we know about the needs of children and takes us back decades.”

Oliver Studdert, partner at Irwin Mitchell, representing Article 39, said:

“There are so many horror stories about unregulated accommodation, yet the government remains of the view that it is acceptable and appropriate to use it. Children in the care of local authorities not only need, but have the right to be provided with suitable accommodation and care. That does not simply cease because they turn 16. The local authority should be parenting all children in their care, and this cannot be done without the provision of care.

The Care Standards Act 2000 requires that establishments which provide care and accommodation wholly or mainly to children must be registered as children’s homes with Ofsted. They must follow quality standards which are set out in law.

The Department for Education plans to develop national standards for unregulated accommodation (which may or may not also apply to adults) but these will omit any requirements to provide care to children. This will create a two-tier system, whereby children in foster care, children’s homes and other care settings receive adult care and consistent adult supervision, and those in what’s called ‘supported accommodation’ go without. It effectively reintroduces a leaving care age of 16 for children who are not settled in foster families (where the law allows them to remain until they are 21).


  1. Article 39 is represented by Oliver Studdert from Irwin Mitchell, Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.
  2. We are able to initiate this legal challenge because of the generous donations we received last year when we successfully challenged the Education Secretary’s overnight deletions and dilutions of 65 protections for children in care. The Court of Appeal in that case found that the Education Secretary had acted unlawfully (judgment given 24 November 2020). However, as a very small charity we will once again have to embark on fundraising to support this litigation, should the government refuse to protect 16 and 17 year-olds.
  3. We are challenging The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (Statutory Instrument 161).
  4. The Children’s Commissioner for England’s September 2020 report can be found here.