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Article 39 children’s rights charity has applied to the High Court for a judicial review of secondary legislation made by the Department for Education. This states that children in care must always live in care settings – but only to the age of 15.
This legal change, due to come into force in September 2021, will leave thousands of children in care aged 16 and 17 without protection.
The charity says this is discriminatory and an injustice to older children in care.
Following serious concerns about the safety and welfare of thousands of children in care in England who are placed by their local authorities in unregulated accommodation, the government has changed the law to protect children aged 15 and younger.
From 9 September, councils will no longer be allowed to put children who are aged 15 or younger in accommodation where they receive no adult care and very little or no adult supervision. This protection has not been extended to 16- and 17-year-olds in care, who are similarly extremely vulnerable and for whom there is an abundance of evidence that they need loving, nurturing care and guidance just as much as younger children. It is the first time that government has legislated for age-based placement decision-making for children in care.
Article 39’s claim is very kindly supported by two children and a young adult who have all lived in unregulated accommodation. A foster carer has also generously provided a witness statement.
The government’s own data shows that only around 100 children aged 15 and younger will benefit from their legal change, 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. A third of 16- and 17-year-olds in care currently live in unregulated accommodation. These are children of compulsory education and training age, and 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.
Article 39 is awaiting a freedom of information response from the Department for Education about the numbers of children living in unregulated accommodation who have died or been seriously harmed over the past two years, after it was revealed that four children living in unregulated settings had died during the first pandemic lockdown (between April and September 2020).
Article 39’s Director, Carolyne Willow, said:
“We cannot stand by and watch the government create a two-tier care system for children which discriminates on the basis of age. Families don’t expect our children to go without care and fend for themselves from the age of 16, and neither should the care system. The majority of children in care have already endured great suffering; we should be ensuring they receive as much love, care and adult help as we can possibly give them, not pushing them into so-called trainer flats, bedsits and hostels before they’ve even finished their GCSEs.
“England remains a wealthy country and we have many decades of learning about the consequences of not meeting children’s needs and expelling children from care years too early. This legal change suggests the Department for Education needs tutoring in basic child and adolescent development.
“As a very small children’s rights charity, we are taking on a big financial risk with this and we’re hoping the public will once again get behind us to protect children’s rights. However, it really shouldn’t need a courtroom battle to secure care and protection for children in the care of the state. That should be a given in 2021.”
Oliver Studdert, partner at Irwin Mitchell, said:
“This claim is brought on three limbs. First, that the regulations irrationally discriminate between children aged 15 and under and those aged 16-17. Second, the regulations fail to have regard to specified equality needs. They discriminate against 16–17-year-olds on the basis of their age, and they disproportionately impact upon boys, and over half of children in unregulated placements are from black, Asian and minority ethnic communities, despite making up 26% of the care population. The third point of challenge is that, although the government did carry out a consultation, this was unfair as its focus was the provision of care for under 16s only.
“By failing to extend the reach of the new regulations to 16- and 17-year-olds in the care of local authorities, the Secretary of State is declaring it is acceptable that thousands of children are placed in wholly unsuitable placements every year without receiving any care. Changes of placement, from a care setting to an unregulated setting, can and do happen overnight, often for no reason other than the child’s age. Many 16- and 17-year-olds entering the care system will never receive care.”
The Department for Education plans to develop national standards for unregulated accommodation but these will omit any requirement to provide care to children. That’s because establishments which provide both care and accommodation to children must be registered as children’s homes and meet existing quality standards.
- Article 39 is represented by Oliver Studdert from Irwin Mitchell, Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.
- The application to the High Court was made on the afternoon of Monday 17 May 2021.
- We were able to launch 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 are once again fundraising to ensure we have enough to cover our own legal costs, and costs the government may seek from us, should the High Court refuse permission for a judicial review.
- Our CrowdJustice appeal can be found here.
- We are challenging The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (Statutory Instrument 161).