THE HIGH COURT in England has granted permission for a judicial review of secondary legislation made by the Education Secretary, Gavin Williamson, which provides that children in care in England must always live in regulated settings where they receive day-to-day care from adults – but only up to the age of 15.

Article 39, the children’s rights charity, is bringing the legal challenge and argues that the change to the law discriminates against children in care aged 16 and 17 who similarly need care, protection and guidance where they live.

Around 6,000 children in care aged 16 and 17 live in accommodation such as hostels, shared houses, flats and bedsits where they do not receive any day-to-day care.

Most of this kind of accommodation (called semi-independent, independent or supported accommodation) is run for profit. Owners are able to bypass the children’s homes quality standards by not providing care to children. Ministers are promising to regulate these places but have decided against making them provide care, and have proposed a much weaker set of standards than that which already exists for children’s homes.

The legal change protecting children only up to the age of 15 to is due to come into force on 9 September 2021.

Article 39’s Director, Carolyne Willow, said: “Families up and down the country have this past week been holding their teenagers close as they received their A Level and GCSE results and made big decisions for the next part of their lives. Yet in this new legislation we have the Education Secretary saying it is perfectly acceptable for children in the care of the state who are still in compulsory education to be living in places where they receive no day-to-day care from adults. That means children sorting out their own school uniforms, making and going to health appointments on their own, and not having family holidays or having someone in a parental role who’s going to know when they’re upset or need cheering up, and can just be there for them.

“We have submitted a huge amount of evidence to the High Court showing the very serious harms suffered by 16 and 17 year-olds in care put into substandard accommodation and exposed to abuse and exploitation. This includes data we obtained from the Department for Education through a freedom of information request showing that 14 children in care who were living in semi-independent accommodation died between April 2018 and September 2020. The vast majority, if not all, of these children were aged 16 and 17. It’s no good the government saying it plans to introduce standards for these places when Ministers have decided to change the law to make 16 the age when children in care don’t have to be actually cared for.”

Article 39’s evidence includes witness statements from two children and a young adult who lived in unregulated accommodation when they were aged 16 and 17. A foster carer of one of the children has also provided a witness statement, as have Mind, the Refugee and Migrant Children’s Consortium and the Together Trust.

Nearly one in three (29 per cent) children in care who live in unregulated accommodation where they do not receive care are the subject of a care order. This means their local authority has parental responsibility for them and an overarching duty to safeguard and promote their welfare. Around four in 10 children living in unregulated accommodation were put there by local councils within less than a week of entering care.

Oliver Studdert, partner at Irwin Mitchell, said: “We are delighted that the High Court has granted permission for this important case to proceed to a full hearing. The court has agreed that the grounds of the judicial review case are arguable. Those grounds are:

  • The Regulations irrationally discriminate between children aged 15 and under and those aged 16 and 17;
  • The Regulations fail to have regard to specified equality needs. They discriminate against 16- and 17-year-olds on the basis of their age, and they disproportionately impact upon boys and children from black, Asian and minority ethnic communities (who make up over half of children in unregulated placements, despite comprising 26 per cent of the care population).
  • Although the government did carry out a consultation, this was unfair as its focus was the provision of care for under 16s only..

“All of these grounds were held to be arguable by the court, and will now be heard at a full judicial review hearing. 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 to non-care 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.”

Ali Gunn, Communications and Campaigns Manager at Together Trust charity, said: “Our research shows that high numbers of compulsory school-aged children in care are not in education or training whilst living in unregulated accommodation. We have seen first-hand the detrimental impact that this has on their mental health and well-being. This new legislation will push those children even further away from the sort of care that a loving, stable, and safe family or children’s home would give them.”

Vicki Nash, Head of Policy, Campaigns and Public Affairs at Mind, the mental health charity, said: “It is right that a judicial review will go ahead and that this issue will be looked at properly; we know that the trauma that many looked after children have gone through means they are far more likely to experience mental health problems and need additional support.

“We do not believe it is possible to provide that support adequately in independent or semi-independent accommodation, where care isn’t available on site and where trained adults are not available round the clock.

“We look forward to engaging in the judicial review process to speak up for looked after children with mental health problems.”

The legislation to be challenged is The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (Statutory Instrument 161). More information here.

* Source: Article 39