Children aged 16 and 17 in care have been discriminated against as a result of secondary legislation introduced which only protects children aged 15 and under, the High Court will hear.

The Department for Education introduced secondary legislation requiring local authorities to always place children in care in settings which are regulated and provide care – but this only applies if the child is aged 15 or younger.

Properties that do not have any carers and are not registered or inspected by Ofsted including shared houses, hostels, foyers and supported lodgings will still be used to place children aged 16 and 17, despite mounting concerns about the safety and well-being of children in care who live in these properties.

The challenge has been brought against education secretary Nadhim Zahawi by lawyers acting for the children’s rights charity Article 39. While the challenge is against Mr Zahawi, the legislation was introduced by Gavin Williamson last year, who was the Education Secretary then and who said at the time that he could not “imagine a circumstance in which a child under the age of 16 should be placed in a setting that does not provide care”.

The court will be told that young people’s views and experiences were not properly considered by the government before it introduced the irrational and discriminatory legislation.

Furthermore, the change to the law disproportionately impacts boys and children from black, Asian and minority ethnic communities.

Article 39 will tell the court 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 require care where they live. The majority (66%) of children in care have suffered abuse or neglect. Twenty-two children in care aged 16 and 17 died while living in properties without adult carers between 2018 and 2020.

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,” she added.

 A review by the children’s commissioner for England in 2020 found that teenagers in care were frequently living in properties alongside vulnerable adults who had recently come out of prison, had addictions or were struggling with their own mental health difficulties.

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.

“The High Court has granted permission for this important judicial review challenge against the Secretary of State for Education to be considered at a two day hearing. We will argue that the regulations irrationally discriminate between children aged 15 and under and those aged 16 and 17, that the government failed to have due regard to the disproportionate impact on boys and children from black, Asian and minority ethnic communities, and that the government’s consultation was unfair as its focus was the provision of care for under 16s only.”

The government announced in January that it will introduce national minimum standards and Ofsted-led registration and inspection for providers of unregulated accommodation for looked after children and care leavers aged 16 and 17 in a bid to drive up standards.