Government unlawfully denying care to vulnerable teenagers, say lawyers

High Court to hear that ministers have irrationally discriminated against 16- and 17-year-olds in care by not including them in new legislation designed to protect looked-after children

Children’s charity Article 39, which is bringing the claim, will tell the court that children in care aged 16 and 17 are just as vulnerable as those aged 15 and under (iStock)

The government is unlawfully denying care to vulnerable teenagers under new legislation, according to lawyers.

A two-day hearing starting on Tuesday in the High Court will hear that the Department for Education has irrationally discriminated against children in care aged 16 and 17 by making secondary legislation that only protects children aged 15 and under.

Following mounting concerns about the safety of children in care who live in properties without carers and are not registered or inspected by Ofsted, ministers introduced secondary legislation last year requiring local authorities to always place children in care in settings that are regulated and provide care.

But this only applies if the child is aged 15 or younger, meaning accommodation where children do not receive any day-to-day care – including shared houses, hostels and lodgings – will remain in use for 16- and 17-year-olds.

Children’s charity Article 39, which is bringing the claim, will tell the court the government had evidence before it made the decision showing that children in care aged 16 and 17 are just as vulnerable as those aged 15 and under, and that they also require care where they live.

The charity’s lawyers will argue that the regulations irrationally discriminate against children aged 16 and 17, and that ministers failed to give due regard to the disproportionate impact on boys and children from black, Asian and minority ethnic communities.

They will also argue that the government’s consultation on the change was unfair as its focus was the provision of care for under 16s only. Carolyne Willow, director of Article 39 and 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 frequently come into care after experiencing years and years of harrowing neglect and mistreatment,” she added. “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.”

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

Twenty-two children in care aged 16 and 17 died while living in properties without adult carers between 2018 and 2020. The majority (65 per cent) of children in care have suffered abuse or neglect.

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 [education secretary] is declaring it is acceptable that thousands of children are placed in wholly unsuitable placements every year without receiving any care where they live.”

A Department for Education spokesperson said: “Supported accommodation can be right for some young people aged 16 or 17 where provision is high quality and they are ready for it, but most will be in children’s homes or foster care.

“We are investing more than £14m to introduce mandatory national standards, meaning that from 2023 every type of social care placement for children up to the age of 18 will be regulated by Ofsted. We are also ensuring young people in care can keep their support networks as they approach adulthood and are providing councils with billions more in grant funding for vital frontline services, including children’s social care.”