Children aged 16 or 17 and without a home
Children aged 16 or 17 and without a home and parental care: briefing for social workers (November 2024)
The law is clear that children aged 16 or 17 who are without a home and parental care have the legal right to help and protection from their local authority children’s services. Social workers play a critical role in ensuring children’s rights are upheld in these circumstances. As part of this, they should routinely explain to children the role and importance of independent advocacy, provide up-to-date contact details of the local children’s rights or advocacy service, and offer assistance for the child to quickly access an advocate.
Section 20(1) Children Act 1989 places a legal duty on local authorities to accommodate / look after children in need in their area (including those aged 16 and 17) when it appears:
(a) There is no-one who has parental responsibility for the child, or
(b) The child has been lost or abandoned, or
(c) The person who has been caring for the child can no longer provide them with suitable accommodation or care (this can be for any reason). It does not matter whether this inability to provide accommodation or care is temporary or permanent.
Section 20(3) Children Act 1989 places a legal duty on local authorities to accommodate / look after a child in need in their area who is aged 16 and 17 and whose welfare the local authority considers is likely to be seriously prejudiced if they do not provide them with accommodation.
**Section 20 duties to accommodate / look after children, including those aged 16 and 17, are not optional – if a child in need aged 16 or 17 falls within any of the above conditions, they must be looked after under section 20 of the Children Act 1989. There is only one exception to this, see below**
Very limited exception when the duty to accommodate / look after a child in need aged 16 or 17 who is without a home and parental care will not apply
When the child (aged 16 or 17) has been given full information about what being looked after entails, including the rights and entitlements associated with being looked after (both now and into the future as a care leaver), and they have received support from an independent advocate to help them consider their options, and they then make a fully informed decision not to be accommodated / looked after by the local authority.
A child can change their mind at any time. If they continue to be in need, and to fulfil the conditions in section 20(1) or section 20(3), then the local authority must accommodate / look after them.
IMPORTANT: In the above scenario, when a child in need aged 16 or 17 has made a fully informed decision, with assistance from an independent advocate, not to be accommodated / looked after, local authorities can provide accommodation to them under section 17(6) Children Act 1989.
In addition to the clear legal duties in section 20(1) and section 20(3), section 20(4) Children Act 1989 empowers local authorities to accommodate / look after any child within their area if they consider this would safeguard or promote the child’s welfare. Section 20(4) does not require that the child meets the legal criteria for being a child in need (see below). It also applies even if someone with parental responsibility is able to provide the child with accommodation.
>> This means there are three section 20 routes through which children aged 16 and 17 can be looked after by a local authority – two (section 20(1) and section 20(3)) – where there is no discretion for the local authority, and the third (section 20(4)) where the local authority has discretion.
IMPORTANT: Whenever local authorities are undertaking a child in need assessment, they are under a legal duty to ascertain and give due consideration to the child’s wishes and feelings. Social workers should be able to evidence that they have implemented this two-part duty – that is, that they have sought the wishes and feelings of the child concerned, and they have then given due consideration to these wishes and feelings.
Section 20(11) Children Act 1989 provides that parental agreement for a child aged 16 or 17 to be accommodated / looked after is not required. Children aged 16 or 17 can give this consent themselves.
| What is a child in need: the law A child is in need if:They are unlikely to have a reasonable standard of physical or mental health or physical, intellectual, emotional, social or behavioural development without services from a local authority, orTheir health or development is likely to be damaged, or further damaged, without services from a local authority, orThey are disabled.[i] |
It will be extremely rare for local authorities to decide that a 16 or 17 year-old without a home and parental care is not a child in need. In such a rare situation – when a child is assessed as not being a child in need (following the legal criteria above) – the council has duties to provide the child with accommodation under housing law (rather than through child welfare law).[ii]
Whether the local authority children’s services or housing arrange somewhere for the child to live, government guidance states that the following types of accommodation are not considered suitable for any 16 and 17 year-olds:
- Bed and breakfast accommodation, including hotels.
- Nightly rental places where there are shared facilities (like kitchens and bathrooms).
- Night shelters where homeless people of all ages sleep.[iii]
Child protection duties
Local authority child protection duties apply to all children, including those aged 16 and 17.
When a local authority has reasonable cause to suspect a child in their area is suffering, or is likely to suffer, significant harm, section 47(1)(b) Children Act 1989 requires it to make enquiries to decide whether it needs to take action to safeguard or promote the child’s welfare. Section 47(5A) Children Act 1989 places a duty on the local authority when undertaking this child protection investigation to ascertain and give due consideration to the child’s wishes and feelings. Social workers should be able to evidence that they have implemented this two-part duty – that is, that they have sought the wishes and feelings of the child concerned, and they have then given due consideration to these wishes and feelings.
>> If a child aged 16 or 17 is suffering significant harm, or is likely to suffer significant harm, the local authority has obligations and powers to take action to protect them – for example, through an application to the family court for an emergency protection order (if the child does not consent to being accommodated / looked after). For those aged under 17, the local authority may also consider initiating care proceedings. The family court can make a care order with respect to a child up to the age of 17 (no order may be made once a child has turned 17).
Local authority’s decision-making can be clallenged
Young people have successfully challenged local authorities who have failed to comply with their legal duties to accommodate / look after children aged 16 and 17 through:
- Use of the Children Act 1989 complaints procedure;
- Complaint to the Local Government and Social Care Ombudsman; and/or
- By taking (or threatening to take) the local authority to court.
When a social worker informs a child aged 16 or 17 that their local authority does not consider them to be in need, they are therefore not entitled to be accommodated / looked after under section 20(1) or section 20(3) Children Act 1989, and/or the local authority has decided not to use its discretion to accommodate / look after them under section 20(4), they should always communicate the child’s right to challenge this decision-making. They should offer to help the child access support from an independent advocate and, if necessary, legal advice.
Human rights duties
Section 6(1) Human Rights Act 1998 requires all public authorities, including local authorities, to act compatibly with the rights and protections in the European Convention on Human Rights (ECHR).
A child or young person may bring a Human Rights Act 1998 claim if they have suffered a breach of their ECHR rights. Article 8 ECHR – protection of the child or young person’s physical and psychological integrity – is likely to be the most relevant protection engaged in circumstances where a local authority fails to accommodate / look after a child aged 16 or 17 who is without a home and parental care.
Professional standards
A social worker who does not act consistently with the law, including human rights law, is arguably in breach of their professional standards. This would include social workers in management roles who make unlawful decisions about the rights and welfare of individual children aged 16 and 17.
Our research
Article 39 carried out freedom of information research with local authorities in England in 2023/24. This found that that more than half (53%) of English local authorities do not have published materials for 16 and 17 year-olds who are homeless.
Statutory guidance for local authorities, first issued in 2010, requires local authorities to give children “full information” about their rights to protection and care when they are considering whether or not to be looked after by a local authority. It should be extremely rare for a child in England without a home and parental care to be provided accommodation through local authority housing duties, rather than child welfare law.
Even when local authorities did have information for children aged 16 and 17, fewer than half (47%) of the materials actually informed children of their right to help from an independent advocate, and just 40% contained the contact details of an advocacy service. The right to an independent advocate for children and young people when they are in contact with children’s social care has been in law since 2002. Article 39 therefore produced an online resource for children and young people, which we published in September 2024.
PLEASE SHARE OUR RESOURCE WITH CHILDREN AND YOUNG PEOPLE YOU WORK WITH.
[i] Section 17(10)-(11) Children Act 1989.
[ii] Part 7 Housing Act 1996; Ministry of Housing, Communities and Local Government (2018, updated in 2024) Homelessness code of guidance for local authorities. Chapter 6: Homeless or threatened with homelessness.
[iii] Ministry of Housing, Communities and Local Government and Department for Education (2018) Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation. Guidance to children’s services authorities and local housing authorities about their duties under Part 3 of the Children Act 1989 and Part 7 of the Housing Act 1996 to secure or provide accommodation for homeless 16 and 17 year old young people. Paragraphs 5.10 and 5.12.