High Court to hear judicial review challenge over accommodation of 16 and 17 year old children in care

The High Court will this week (8-9 February) hear a claim that the Secretary of State for Education irrationally discriminated against children in care aged 16 and 17 by making secondary legislation which only protects children aged 15 and under.

The legal challenge was launched by children’s rights charity Article 39 after the Department for Education introduced secondary legislation requiring local authorities to always place children in care aged 15 and under in settings which are regulated and provide care.

Ths meant accommodation where children do not receive any day-to-day care would remain available for teenagers in care aged 16 and 17 and includes shared houses, hostels, foyers and supported lodgings, Article 39 said.

In addition to the claim of irrational discrimination, the claimant will further argue that:

• the change to the law disproportionately impacts boys and children from black, Asian and minority ethnic communities;
• young people’s views and experiences were not properly considered by the Government before it introduced the legislation. 

Article 39 said it would tell Mr Justice Holgate 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 required care where they live.

In a statement issued ahead of the High Court hearing, 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.”   

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."

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. The claim is being funded through CrowdJustice.

The secondary legislation introduced into Parliament in February 2021 and which came into force on 9 September 2021 can be found here.