Government statistics revealed last month that 2,130 children aged 16-17 were officially assessed by councils as either being homeless or threatened with homelessness in the year to 31 March 2024. This is despite child welfare legislation, government guidance and case law being very clear that children this age without a home and parental care almost always should be looked after within the children’s care system. Children this age should appear very rarely (if ever) in homelessness statistics.
Deeply concerned about the treatment of 16 and 17-year-olds without a home and parental care, Article 39 sent a freedom of information (FOI) request to every English local authority in July 2023. We asked them for their policies, and for any materials specially produced for children in these circumstances. We received responses from 131 local authorities (86% of 152 local authorities responsible for children’s services in England), with the last arriving in March 2024.
Finding that more than half of local authorities had not produced materials for children aged 16 and 17 without a home and parental care, we published our own online guide in September (used 1,400 times to date).
We are today publishing a briefing for social workers, to increase understanding of local authority legal duties towards children in need in their area without a home and parental care.
Our FOI research
Eight in 10 local authorities were able to provide us with a written local policy setting out how children’s services and housing should respond to 16 and 17-year-olds without a home and parental care. However, a significant proportion of the policies analysed by Article 39 do not clearly or fully communicate local authority duties under the Children Act 1989.
We found that:
- More than a third of local authority policies do not explain their duty under section 20(1) Children Act 1989 to looked after children in need in their area whose parent or other carer is no longer able to provide suitable accommodation or care.
- Even when local authority policies do explain this duty, only around a third have this information positioned early in the document. This inevitably makes it more difficult for busy practitioners to quickly grasp what children in these circumstances are entitled to.
- Over half of local authority policies do not explain their duty under section 20(3) Children Act 1989 to look after children in need in their area who are aged 16 or 17 and whose welfare would be likely to be seriously prejudiced without being accommodated.
- Even when this section 20(3) duty is explained in local authority policies, it is often buried in long, densely produced documents. As with the section 20(1) Children Act 1989 duty, only around a third of local authority policies have positioned information about section 20(3) early in their documents. Irrespective of the intention, Article 39 fears the effect of this is to obscure the statutory obligations of local authorities.
Positive aspects of local authority policies
- Some policy documents expressed significant concern and compassion for children aged 16 and 17 without a home and parental care; they communicated that the local authority recognises the psychological and emotional impact for a child in these circumstances at such a young age, as well as the physical dangers. The most impressive policies acknowledged the long-term risks and harms of homelessness in the teenage years.
- Many policies communicated the importance of trying to reunite children with their families whenever this can be done safely. Those that stood out positively had arrangements in place for family mediation where the child receives independent support and help to ensure their perspective is known, understood and taken seriously.
- While it was extremely common for policies to refer to children aged 16 and 17 being able to refuse to be looked after, very positively some underlined local authorities’ safeguarding responsibilities and the need for protective action when a child is in danger.
- The best policies spoke positively and emphatically about local authority duties to accommodate children in need, and communicated a clear desire for children to be properly informed about how they would be looked after – including how their education, health and leisure interests would be valued and nurtured – and what support they could look forward to as adults (care leavers).
- A small number of policies explained the importance of independent advocacy, and incorporated advocacy help at all stages – including when a child’s first home / placement is being sought.
- While a large number of policies assumed children aged 16 and 17 would have their first home / placement in supported accommodation, a small number stressed that fostering and children’s homes are also available.
Recurring problems which Article 39’s briefing seeks to rectify
- Most policies stated clearly that children’s services are meant to lead assessments of children in need and to accommodate / look after children when section 20 Children Act duties apply, but far too many did not explain the significance and the detail of these legal duties. In Article 39’s experience (drawn from our advice service and training), citing sections from the Children Act 1989 is not sufficient on its own; a clear explanation of what these legal provisions actually mean is required.
- Even though the role of children’s services was usually emphasised, the operational aspects of policies often gave housing services, and housing law, more prominence.
- A large number of policies were densely written and repetitive. They did not appear to have been drafted with busy practitioners in mind.
- It was not unusual for policies to be out of date and to use inaccurate legal references.
- The overall tone of many policies came across as dispassionate and bureaucratic.
- There was a consistent assumption that when children aged 16 or 17 enter care they would be immediately offered supported accommodation. This is not consistent with local authorities’ care planning and placement decision-making legal obligations.
- Some local authorities did not mention independent advocacy at all, and very few emphasised that children have the legal right to advocacy. Contact details for independent advocacy services were not consistently included in policies, and it was very uncommon for social workers to be required, or even encouraged, to practically support children to obtain help from an advocate. A small number of policies included advocacy services in a list of contacts, but they rarely explained the purpose and importance of advocacy.
- While policies consistently emphasised children aged 16 and 17 being able to refuse to be looked after, they invariably failed to refer explicitly to section 20(11) of the Children Act 1989, which allows children aged 16 and 17 to be looked after when they give consent themselves. Parental agreement is not required for this age group to become looked after, and parents are unable to remove a child aged 16 and 17 from a looked after arrangement.
- In the absence of full information and high-quality independent advocacy, the seemingly common practice of requiring children to sign a document stating they have refused to be looked after appears to be a means of local authority warding off future retrospective care claims, rather than an act of respecting a child’s agency.
