The High Court has ruled that secondary legislation which requires local authorities to always place children in care aged 15 and younger in settings which are regulated and provide care does not discriminate against 16 and 17-year olds.

Children rights charity Article 39 had claimed that the introduction of the secondary legislation meant that the Education Secretary irrationally discriminated against 16 and 17 year-olds; that he did not fulfil his equality duties; and a consultation undertaken by the Department for Education was unfair.

However, the High Court has rejected all three grounds.

Carolyne Willow, Article 39’s Director, said: “This is a very upsetting judgment because of the profound implications for children in care. There is no question that children will continue to be placed in wholly unsuitable accommodation. Ministers were pushed into taking action because of mounting evidence of the harms suffered by children in care living in properties which bypass ordinary care standards. Instead of protecting all children, they decided to create a two-tier system where children in care aged 15 and under will always be cared for where they live, and those aged 16 and 17 can go without care in their home. One in three children in care aged 16 and 17 already lives in care-less properties. The secondary legislation is bound to increase that proportion since the brake on councils putting children into these places is lifted as soon as a child reaches 16.”

The secondary legislation, which came into force from September 2021, prevents local authorities from placing younger children in properties which are unregulated and do not follow care standards. This means that when children in care aged 15 and under are not able to live with family members, foster carers or in children’s homes, they must be placed in settings that are registered and inspected by Ofsted or the Care Quality Commission, sometimes both.

However, 16 and 17 year-olds in care have not been given the same protection and therefore they can be placed in accommodation such as bedsits, flats, shared houses and hostels – where children receive a set number of hours of support a week but not day-to-day care or supervision.

When ministers made their decision over a third of children in care aged 16 and 17 – more than 6,000 at any one time – were living in this kind of accommodation.

In her work for the Commission on Young Lives, former children’s commissioner Anne Longfield said the current care system is unfit for purpose and is handing over some vulnerable children to criminals and abusers rather than ensuring they are protected.

Vulnerable teenagers are moved away from their families and communities, are too frequently shipped from placement to placement and continue to be placed in accommodation that puts them at risk of harm - sometimes alongside adults and those involved with drugs and crime, she added.

However, Mr Justice Holgate said: “On the evidence before the court it is plain that some looked after children aged 16 or 17 are assessed as being suitable for a very independent level of living and are therefore placed in a shared home with care in the form of external, rather than in situ, support. For example, a child might be assessed as not requiring any assistance from the person responsible for the shared house in organising the child’s use of educational, training or medical facilities provided for in the care plan.”

Despite referring later in his judgment to “very troubling examples” of children suffering sexual exploitation and abuse while living in unregulated accommodation, Mr Justice Holgate found that independent and semi-independent accommodation “is the most appropriate solution” for some 16 and 17 year-old children in care, therefore it could not be irrational to draw a distinction on the basis of age.

He concluded: “The Secretary of State was legally entitled to take the view that unregulated accommodation of a sufficiently high quality may continue [for 16 and 17 year-olds].”

Carolyne Willow said: “Age on its own tells us nothing about a child’s history, what they have been through before coming into care, whether they are disabled, have mental health difficulties or have suffered sexual or physical abuse or other trauma. It doesn’t tell us about the child’s legal situation, or what a family court envisaged for them when making a care order and handing a local authority parental responsibility. Age also doesn’t tells us how things are going for a child at school or college, nor is it an indicator of a child having special educational needs or learning difficulties.

“It’s no good ministers saying that local authorities will undertake careful assessments of each individual child, and only place 16 and 17 year-olds in settings without care and supervision when they can cope with this and the accommodation is of sufficient high quality. That was the legal position before ministers took remedial safeguarding action for younger children but not for those aged 16 and 17.

“The government has removed discretion from local authorities in respect of children aged 15 and younger, strongly implying they don’t trust councils to make the right decisions for this cohort of children. In research carried out for the Department for Education with 22 local authority managers, 16 (73%) reported this kind of accommodation is of “variable quality” and only 6 (27%) said it was “good quality”. Just 3 of the 22 local authorities (14%) said they had no concerns about the unregulated accommodation they were using for children in care. In their responses to the consultation, young people gave accounts of abuse, exploitation, requiring emergency medical care, feeling lonely and afraid, being pushed into drug-taking and struggling with their homework alone. The secondary legislation has done nothing to help prevent any of these harms for children aged 16 and 17.   

“Imagine if ministers had been made aware of children suffering serious harms in schools or children’s hospitals and had decided to legislate away the risks but only for a particular age group, or they had protected boys or girls only. There would be an outcry.

“The support we’ve received so far from the care experienced community, from those who work with children in care, and concerned members of the public has been phenomenal. We’re extremely sorry to be sharing such deeply disappointing news, and commit to doing all we can to put this right.”

Oliver Studdert, a public law and human rights lawyer at Irwin Mitchell representing Article 39, said after the hearing: “This is an incredibly sensitive area which affects thousands of vulnerable 16 and 17 year-olds. My client is very disappointed by this judgment and remains of the firm view that the decision not to extend the ban on unregulated accommodation to 16 and 17 year-olds was unlawful. This is an extremely important issue and we will be seeking permission to appeal to the Court of Appeal.”

Article 39’s application for permission to appeal was refused by the Judge. Article 39 intends to renew this application in the Court of Appeal.

Judgement