High Court to hear children in care discrimination claim

In a two-day hearing starting today (8 February), the High Court will be told that the Secretary of State for Education, Nadhim Zahawi, has irrationally discriminated against children in care aged 16 and 17 by making secondary legislation which only protects children aged 15 and under. Lawyers acting for a small children’s rights charity, Article 39, will further argue that the change to the law disproportionately impacts boys and children from black, Asian and minority ethnic communities. The court will also be told that young people’s views and experiences were not properly considered by the government before it introduced the irrational and discriminatory legislation. 

Following mounting concerns about the safety and well-being of children in care who live in properties that do not have any carers and are not registered or inspected by Ofsted, the Department for Education introduced secondary legislation requiring local authorities to always place children in care in settings which are regulated and provide care – but this only applies if the child is aged 15 or younger. Accommodation where children do not receive any day-to-day care will remain available for teenagers in care aged 16 and 17 and includes shared houses, hostels, foyers and supported lodgings. 

Gavin Williamson, who was the Education Secretary responsible for last year’s legal change, said at the time that he could not “imagine a circumstance in which a child under the age of 16 should be placed in a setting that does not provide care”. 

Article 39 will tell the court that the evidence the government had before it categorically showed that children in care aged 16 and 17 are just as vulnerable as those aged 15 and under, and they also require care where they live. Twenty-two children in care aged 16 and 17 died while living in properties without adult carers between 2018 and 2020. The majority (66%) of children in care have suffered abuse or neglect. 

Carolyne Willow, Article 39’s Director, a registered social worker, said:

“It beggars belief that a small charity is having to go to court to argue that all children in care must be cared for where they live. Children of all ages need love, affection, understanding and to be listened to and looked after. I’ve yet to meet a parent of teenagers who believes that none of this is necessary from the age of 16. 

“Children frequently come into care after experiencing years and years of harrowing neglect and mistreatment. This notion that a 16 year-old in care can take full charge of their finances and their health appointments and decisions about staying away overnight, now backed up by law, is institutional neglect. The Children Act 1989 entitles every child in care up to the age of 18 to have their needs met and to be safe and protected. This secondary legislation effectively reduces the care system for older teenagers to a housing project with intermittent support. 

“It’s no good ministers putting this back to local authorities and saying they are responsible for finding the most suitable home for each child. If the government wants every child in care to be cared for then it must draft legislation and provide the funds to make this happen.”   

A review by the Children’s Commissioner in 2020 found that teenagers in care were frequently living in properties with vulnerable adults who had recently come out of prison, had addictions or were struggling with their own mental health difficulties. In December last year, the Department for Education said it has “no intention” of ending the practice of 16 and 17 year-olds in care being housed in properties alongside adults.

Last year, the Child Safeguarding Practice Review Panel, recently given the task of reviewing the murder of six year-old Arthur Labinjo-Hughes, revealed it had analysed 48 incidents where children had entered care as a result of abuse or neglect and had died or suffered serious harm while in care. It reported that children were entering care in adolescence following “long-term parental abuse and neglect, with significant trauma” and where children entered care as teenagers due to exploitation and involvement in gangs, “these continued once in the care system”.

Oliver Studdert, partner in the Public Law and Human Rights team at Irwin Mitchell, said:

“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. 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 where they live.

“The High Court has granted permission for this important judicial review challenge against the Secretary of State for Education to be considered at a two day hearing. We will argue that the regulations irrationally discriminate between children aged 15 and under and those aged 16 and 17, that the government failed to have due regard to the disproportionate impact on boys and children from black, Asian and minority ethnic communities, and that the government’s consultation was unfair as its focus was the provision of care for under 16s only.”

Article 39’s evidence to the court includes safeguarding concerns raised in respect of children in care living in properties where they do not receive care or consistent adult supervision. Information shared with the charity by UK News Media shows safeguarding alerts relating to at least 763 children looked after by 42 local authorities in England between January 2019 and December 2020. Where children’s ages were given, the majority were aged 16 and 17. Twenty-one local authorities gave breakdowns of the individual concerns raised – of 789 separate safeguarding concerns, a quarter (24%) related to sexual abuse and child sexual exploitation; 22% to physical abuse; and 16% to emotional abuse.  

Witness statements from three young people who lived in care-less accommodation as children in care, and a foster carer who went on to care for one of the children, have been provided to the High Court as part of Article 39’s claim. Mind, the Refugee and Migrant Children’s Consortium and the Together Trust have similarly provided evidence to the court. 

Prior to making the legal change, the Department for Education held a public consultation in 2020 asking for views on changing the law to stop councils putting children in care aged 15 and under in accommodation where they do not receive any care. The government consultation document stated that children under the age of 16 who are in care are often very vulnerable and have complex needs, and so accommodation focused on preparing them for independence cannot meet their needs. For children in care aged 16 and 17, however, ministers proposed a set of standards for ‘supported accommodation’ which will deliberately omit any requirement for property owners to provide care. 

Owners of establishments which provide accommodation and care to children in care must register their properties as children’s homes with Ofsted; they must follow nine quality standards; and each home is inspected once or twice a year depending on the quality of care provided to children. 

Government plans to introduce care-less standards for supported accommodation for 16 and 17 year-olds will create a new category of establishment registered with Ofsted, which lacks any requirement to provide care to children. Inspectors will not visit each property; instead a sample will be selected for ‘provider-level’ inspection. This creates a two-tier system for children in care with a dividing line based on the child’s age.

Research published by the Department for Education at the time of the 2020 public consultation showed:

• More than 6,000 children in care aged 16 and 17 were living in properties without day-to-day care or consistent adult supervision. This equates to a third of children in care from this age group.
• Around 90 children in care aged 15 and under were living in care-less accommodation. 
• Of 22 local authority managers asked to provide information to researchers, only one reported that children in care-less accommodation generally have fewer complex needs than other children in care.
• More than half of children living in care-less accommodation were from black and minority ethnic communities. 
• The vast majority (7 in every 10) of children put into care-less accommodation were boys.
• Four in ten children in care living in care-less accommodation were put there within less than a week of entering care.
• Three-quarters of care-less accommodation for children in care was run for profit.

Over 165 young people with experience of living in care-less accommodation contributed to the government’s public consultation. However, their submissions were excluded from the academic analysis of the consultation responses commissioned by the Department for Education. Following a freedom of information request, Article 39 obtained a government summary of young people’s views but this has not been published and the charity’s legal team will argue in court that there is scant evidence that ministers considered young people views and experiences. 

Ofsted has published guidance on the difference between care and support, indicating that children in care aged 16 and 17 who are living in properties with support (not care):

• Regularly have significant periods when there are no staff providing direct supervision.
• Have the same supervision, support, facilities or restrictions as adults living within the accommodation.
• Have full responsibility for their medication and health care appointments (and staff don’t have access to their medical records).
• Have full control of their finances.
• Don’t need any permission to stay somewhere else overnight.

Last week a delegation of adults who were in care as children delivered a petition to 10 Downing Street signed by over 10,700 people with direct and/or professional experience of the care system. The Prime Minister has yet to respond.

Notes

1. The two-day High Court hearing is scheduled for 8-9 February, and will take place at The Royal Courts of Justice at the Strand, London. 
2. Article 39 is represented by Oliver Studdert and Katie Wilkins of Irwin Mitchell, Steve Broach of 39 Essex Chambers, and Khatija Hafesji of Monckton Chambers. 
3. This legal challenge has only been possible through a CrowdJustice appeal. Donations can be made here. 
4. The secondary legislation was introduced into Parliament in February 2021 and came into force on 9^th September 2021. It can be found here.
5. Gavin Williamson’s statement about children under 16 always requiring care can be found in the 2020 consultation outcome document (published February 2021) here. 
6. Ofsted’s guidance on what counts as support or care – ‘Indicators for supported accommodation’ can be found here.
7. Data on children in care can be found here.
8. In October 2021, in response to a question from Sarah Champion MP, the Children’s Minister Will Quince MP stated: “The number of children looked after who died whilst in independent or semi-independent accommodation during 2018-2020 was 22. All children were aged 16 or over. Due to the small numbers involved this figure cannot be broken down by individual age or local authority or into separate years to protect confidentiality”. The minister’s statement can be found here.
9. The Children’s Commissioner for England’s 2020 review can be found here.
10. The Child Safeguarding Practice Review Panel report summarising its analysis of 48 incidents where children in care died or suffered serious harm can be found here. Article 39 children’s rights charity is awaiting a delayed response to a freedom of information request for further details of these children’s experiences in care.