Permission refused for Article 39 to take care discrimination challenge to Court of Appeal

Article 39 children’s rights charity is bitterly disappointed to share the news that our application to take our legal challenge against discriminatory legislation to the Court of Appeal has been refused. 

In March this year, we lost our High Court challenge against secondary legislation introduced by the Department for Education which requires local authorities to always use regulated homes that provide care when a child in care is aged 15 or under. Our legal challenge argued that 16 and 17 year-olds should have been included in the secondary legislation and protected from the known dangers of placement in unregulated accommodation.  

When the legal change was announced, the then Education Secretary Gavin Williamson said he could not imagine a circumstance where a child in care under the age of 16 should be placed in a setting without care that was focused on independence. Having got to the end of the litigation, we are no further forward in understanding why the Minister was seemingly able to imagine 16 and 17 year-olds going without care.  

Boys and children from black, Asian and minority ethnic communities are disproportionately placed by local authorities into unregulated accommodation, and this was part of Article 39’s legal challenge.

Latest official data shows that 37% of children in care aged 16 and 17 (7,470 in total) live in unregulated accommodation where they receive no day-to-day care. This has increased by 5% since last year, when the discriminatory legislation came into force. 

The Department for Education is currently consulting on new standards and inspection arrangements for supported accommodation for children in care aged 16 and 17. Proposals include Ofsted registering providers who offer bedsits and hostels with adults living in them as homes for children in care aged 16 and 17. Caravans, boats and barges – described as ‘non-permanent settings’ – will also be, “in exceptional circumstances”, registered as suitable homes for 16 and 17 year-olds in care.

Unlike children’s homes, which must be inspected every 12-15 months, the Department for Education proposes to introduce three-yearly inspection cycles, and even then inspectors will visit only a sample of places where 16 and 17 year-olds live.   

Article 39’s Director, Carolyne Willow, said:

“I am so sorry we have come to the end of the line with this legal action. I know just how much this means to thousands of care experienced children and adults, and to those who champion and defend your rights. 

“We tried our best to force a change to this unjust and harmful government policy, so that individual children do not have to find lawyers and bring cases themselves when they are put into accommodation which makes them feel scared, unwanted and alone. Children in care have enough to contend with without having to fight for basic care and security. Although we cannot take this case any further, individual children in care who are given bedsits, hostels, caravans and holiday rentals as homes, and who do not feel safe or looked after, can still challenge this. Local authorities continue to have many important duties towards children in care, and we
are available to help children challenge decisions at an individual level.  

“This case would not have been possible without the generosity of hundreds who donated to our crowdfunding appeal, and all those who promoted it. We will be forever grateful to the young people who provided witness statements describing the harms they suffered while living in unregulated accommodation as teenagers in care, and to the foster carer who similarly helped us. Huge thanks also go to Mind, the Refugee and Migrant Children’s Consortium and the Together Trust who provided statements to the court in support of our case.

“I feel sure that the discriminatory legislation we sought to have overturned will be rectified in the future. We already know that 29 children in care aged 16 and 17 died while living in unregulated, non-care settings in the five years to March 2021. Countless others have suffered serious harms. 

“For now, we must take solace in knowing that thousands of us publicly opposed this regressive change to the law and government policy, and we will continue to stand together until the fundamental rights of every child in care are protected equally. 

“We are indebted to our fantastic legal team who did all they possibly could to fight for the rights of teenagers in care.” 

As part of the #KeepCaringTo18 campaign, Article 39 is running a ‘What does care mean to you?’ online survey for 16 and 17 year-olds living in England, whether or not they live in care. The charity hopes today’s awful news will spur even more teenagers to complete the survey, which can be accessed here


  1. 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.
  2. This legal challenge was only possible through a CrowdJustice appeal.
  3. Data on the number of children in care aged 16 and 17 who died while living in unregulated accommodation between 2016/17 and 2020/21 can be found here.
  4. The Department for Education has today refused to say how many children in care died in unregulated accommodation over the past year, instead stating the number is between 1 and 5 children. The reason given for this evasion is “to protect confidentiality”.
  5. The link to the ‘What does care mean to you?’ online survey is here: