The Department for Education faces legal action after children’s rights charity Article 39 has applied to the High Court for a judicial review of secondary legislation which will ensure children in care aged 15 and younger will only be placed in regulated accommodation leaving those aged 16 and over with no protection.

The DfE has announced, following consultation, that young people aged 15 and under will not be placed in unregulated accommodation from September 2021.

However, Article 39 says the legal change will leave thousands of children in care aged 16 and 17 without protection, which is discriminatory and an injustice to older children in care .

“We cannot stand by and watch the government create a two-tier care system for children which discriminates on the basis of age. Families don’t expect our children to go without care and fend for themselves from the age of 16, and neither should the care system. The majority of children in care have already endured great suffering; we should be ensuring they receive as much love, care and adult help as we can possibly give them, not pushing them into so-called trainer flats, bedsits and hostels before they’ve even finished their GCSEs," said Carolyne Willow, director, Article 39.

The former children’s commissioner Anne Longfield had raised concerns about children in care being placed in unregulated accommodation. She urged the government to change the law to prevent local authorities placing under-18s in care in unregulated accommodation including bedsits, hostels and caravans.

But while from 9 September, local authorities will no longer be allowed to place children who are aged 15 or younger in accommodation where they receive no adult care and very little or no adult supervision, this protection has not been extended to 16- and 17-year-olds in care. This age group are similarly extremely vulnerable and there is an abundance of evidence that they need loving, nurturing care and guidance just as much as younger children.

Article 39 says that it is the first time that government has legislated for age-based placement decision-making for children in care.

The government’s own data shows that only around 100 children aged 15 and younger will benefit from their legal change. Yet at any one time there are around 6,000 children aged 16 and 17 who are looked after by local authorities and who are living in unregulated accommodation.

The children’s rights charity states that:

• A third of 16- and 17-year-olds in care currently live in unregulated accommodation.
• These are children of compulsory education and training age.
• 29% are the subject of a care order where a local authority has parental responsibility for them.
• Around 4 in 10 children living in unregulated accommodation were put there by local councils within a week of entering care.

"England remains a wealthy country and we have many decades of learning about the consequences of not meeting children’s needs and expelling children from care years too early. This legal change suggests the Department for Education needs tutoring in basic child and adolescent development," said Carolyne Willow.

“As a very small children’s rights charity, we are taking on a big financial risk with this and we’re hoping the public will once again get behind us to protect children’s rights. However, it really shouldn’t need a courtroom battle to secure care and protection for children in the care of the state. That should be a given in 2021."

Article 39 is represented by Oliver Studdert from Irwin Mitchell, Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers. Furthermore, Article 39’s claim is supported by two children and a young adult who have all lived in unregulated accommodation. A foster carer has also generously provided a witness statement.

“This claim is brought on three limbs. First, that the regulations irrationally discriminate between children aged 15 and under and those aged 16-17. Second, the regulations fail to have regard to specified equality needs. They discriminate against 16–17-year-olds on the basis of their age, and they disproportionately impact upon boys, and over half of children in unregulated placements are from black, Asian and minority ethnic communities, despite making up 26% of the care population. The third point of challenge is that, although the government did carry out a consultation, this was unfair as its focus was the provision of care for under 16s only," said Oliver Studdert, partner at Irwin Mitchell.

“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 setting to an unregulated 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,” he concluded.