High Court rules against judicial review of ban on unregulated placements

The High Court has ruled there was no discrimination in age-based legal protection for children in care and rejected calls for a judicial review of the ban of unregulated placements for 16 and 17-year-olds.

Last September, the use of unregulated placements was banned for all children in care up to the age of 16. These unregulated placements provide support but not care, which children’s rights charity Article 39 argued ran contrary to the rights of 16 and 17-year-olds who they say are entitled to care.

However, handing down its judgment on the controversial secondary legislation, the High Court rejected all three grounds of Article 39’s claim: 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.

Mr Justice Holgate rejected the claim brought by Article 39 children’s rights charity that ministers had irrationally discriminated between highly vulnerable children on the basis of their age. Finding that the Children Act 1989 “does not contain any provision which requires all care to be provided in situ or as part of a placement.”

“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,” Holgate said.

“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.”

A report from the office of the Children’s Commissioner for England found that children in these unregulated settings were frequently living alongside adults who had recently left prison and/or were struggling with mental health difficulties or addiction. Twenty-nine children in care aged 16 and 17 have died in the past five years while living in accommodation officially deemed to be preparing them for ‘independence’.

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.

“The Secretary of State was legally entitled to take the view that unregulated accommodation of a sufficiently high quality may continue,” Mr Justice Holgate concluded.

Carolyne Willow, Article 39’s Director, said the judgment was “very upsetting” 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.”

“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.

Mr Justice Holgate rejected Article 39’s claim that the Education Secretary was required under the Equality Act 2010 to consider the impact of not extending the ban on 16 and 17 year-olds, and boys and children from black, Asian and minority ethnic communities who are disproportionately placed by councils in properties such as shared houses and hostels.

Justice Holgate also dismissed the claim that the public consultation undertaken by the Department for Education was unfair because it failed to ask whether 16 and 17-year-olds should also be safeguarded; and that the Education Secretary failed to conscientiously consider young people’s responses to that consultation. An unpublished summary prepared by civil servants of the responses from 165 young people was not available to ministers when they were asked to approve plans for the secondary legislation. Despite this, Mr Justice Holgate found the “analysis by officials was appropriate and, where relevant, supported by the independent report”.

The independent report commissioned by the Department for Education had analysed responses from 237 organisations and a small number of individuals only; the 165 responses from young people (41% of total respondents) were not included.

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.”