Campaigners threaten legal action to protect 16- and 17-year-old children in care

Campaigners have written to the Government to threaten legal action over its refusal to prohibit the use of unregulated settings for sixteen and seventeen-year-olds in care.

In February, the Department for Education announced that it was banning the use of these unregulated settings for vulnerable children under the age of 16 after a consultation.

Children’s rights charity Article 39 says this same protection has been denied to thousands of 16 and 17 year-old children in the care of local authorities, leaving them without any adult care and very limited adult supervision.

The changes, as announced in February, are due to come into force in September 2021.

Only around 100 children aged 15 and younger will be affected by the ban on unregulated settings, whereas at any one time around 6,000 children aged 16 and 17 who are looked after by local authorities are living in unregulated accommodation, Article 39 says.

Nearly a third (29%) are the subject of a care order where a local authority has parental responsibility for them, and roughly 4 in 10 children living in unregulated accommodation were put there within a week of entering care, the charity says.

“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,” Carolyne Willow, Article 39’s Director, said.

“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.”

The charity’s investigations revealed that four children aged 16 and 17 died, and three children were harmed, in unregulated accommodation between April and September 2020 – which the Department for Education was notified of by local authorities themselves.

After completing an inquest into the death of one 17-year-old boy, a coroner wrote to the Education Secretary in December 2019 saying: “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 (FOI) request, campaigners obtained all of the responses to the Department for Education’s consultation, finding that many more organisations and individuals expressed concern about the care and protection of 16 and 17-year-olds in care than the Government acknowledged in its consultation response.

The Department for Education commissioned two academics to analyse consultation responses but excluded from that process the views and experiences of 165+ young people, the majority of whom had been in care.

Oliver Studdert, partner at Irwin Mitchell, representing Article 39, said that there were many “horror stories” about unregulated accommodation that the Government is ignoring.

“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.”

In a previous ruling in November 2020, after a campaign by Article 39 and others, the Court of Appeal found the Education Secretary had acted “unlawfully” in failing to consult children’s rights figures when making changes to legal protections for children in care.