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Government threatened with legal action over 16 and 17-year-olds in unregulated accommodation

The government has been threatened with legal action in order to protect the rights of 16 and 17-year-olds children in care.

In February, following a consultation, the Department for Education confirmed that local authorities would be banned from placing children aged 15-years-old and younger in unregulated accommodation including bedsits, hostels and flats.

However, children's rights charity Article 39 has raised concerns for the 16 and 17-year-olds in care who are not covered by the same protection.

Article 39’s Director, Carolyne Willow, said: “What parent would countenance withdrawing care from children at the age of 16, as they enter and complete their crucial final year at school? This is a heartless change to the law, which is not founded on any evidence that children stop needing adult care and supervision from their 16th birthday.

“It is deeply depressing that we are having to threaten the government with legal action if it does not honour the principles and provisions of the Children Act 1989 and the United Nations Convention on the Rights of the Child, which do not discriminate between children on the basis of age.

“Children are being shunted into unregulated accommodation, the majority of which is run for profit, as a default option because of the national shortage of caring homes. It’s the government’s job to sort this for children, by properly resourcing local authorities and having a national strategy, but instead ministers have made the smallest change possible. If left unchecked, this change to the law gives the green light to local authorities to discriminate against 16 and 17 year-olds in their care. It’s the first time government has tried to put into law age-based placement decision-making for children in care. It defies everything we know about the needs of children and takes us back decades,” she added.

Changes to care planning statutory rules are due to come into force at the beginning of September.

The measures introduced for children aged 15 and younger means that 16 and 17 year-old children in the care of local authorities, will be left without any adult care and very limited adult supervision.

Government data shows that there are around 1,000 children aged 15 and younger who will benefit from the changes and will therefore not be placed in unregulated accommodation. Yet at any one time there are around 6,000 children aged 16 and 17-year-old living in unregulated accommodation whilst in the care of local authorities. Almost a third of these children 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 authorities within a week of entering care.

Article 39 highlights that the children’s commissioner for England found that children in care “frequently” live in these settings “alongside vulnerable young adults (usually up to 25 years) battling with their own difficulties, including those struggling with homelessness, mental ill health, addiction, or even transitioning from prison back into the community”.

Article 39 has also found that four children aged 16 and 17 died, and three children were harmed, in unregulated accommodation between April and September 2020. The Department for Education was notified of these serious incidents by councils themselves. After completing an inquest into the death of a 17 year-old boy, a coroner wrote to the Education Secretary in December 2019 to prevent future deaths of children aged 16 to 18. The coroner summed up: “The lack of statutory regulation is placing vulnerable young people at risk, and there is a realistic possibility that deaths may occur”.

Following a Freedom of Information Act request, earlier this month Article 39 obtained all of the responses to the Department for Education’s consultation, finding that many more organisations and individuals than the government acknowledges are deeply concerned about the care and protection of 16 and 17 year-olds in care.

Oliver Studdert, partner at Irwin Mitchell, representing Article 39, said: “There are so many horror stories about unregulated accommodation, yet the government remains of the view that it is acceptable and appropriate to use it. 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. The local authority should be parenting all children in their care, and this cannot be done without the provision of care.”

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