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Government facing legal challenge over unregulated accommodation and 16-17 year olds

A children’s rights charity has threatened the Government with legal action over its decision not to ban the use of unregulated accommodation for 16 and 17 year-old children in care.

In February, the Department for Education announced that a ban on placing vulnerable children under the age of 16 in unregulated accommodation or semi-independent placements would come into force in September this year. This will be through The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021.

Charity Article 39 said the decision not to extend the same protection to 16 and 17 year-old children in the care of local authorities would leave thousands “without any adult care and very limited adult supervision”.

The charity said: “The government’s own data shows that only around 100 children aged 15 and younger will benefit from these changes, 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.

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“These are children of compulsory education and training age. Nearly a third (29%) are the subject of a care order where a local authority has parental responsibility for them. Around 4 in 10 children living in unregulated accommodation were put there by local councils within a week of entering care."

Article 39 said its research had also revealed that four children aged 16 and 17 died, and three children were harmed, in unregulated accommodation between April and September 2020, with the Department for Education being notified of these serious incidents by councils themselves.

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

“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."

Willow added: “Children are being shunted into unregulated accommodation, the majority of which is run for profit, as a default option because of the national shortage of caring homes. It’s the government’s job to sort this for children, by properly resourcing local authorities and having a national strategy, but instead ministers have made the smallest change possible. If left unchecked, this change to the law gives the green light to local authorities to discriminate against 16 and 17 year-olds in their care. It’s the first time government has tried to put into law age-based placement decision-making for children in care. It defies everything we know about the needs of children and takes us back decades.”

Article 39 is represented by Oliver Studdert from Irwin Mitchell, Steve Broach from 39 Essex Chambers, and Khatija Hafesji from Monckton Chambers.

Studdert said: “There are so many horror stories about unregulated accommodation, yet the government remains of the view that it is acceptable and appropriate to use it. 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.“

Article 39 said it had been able to initiate the legal challenge because of the donations it received last year when it successfully challenged the Education Secretary’s failure to consult on deletions and dilutions of 65 protections for children in care. However, it said it would have to embark on fundraising again, “should the government refuse to protect 16 and 17 year-olds”.

Judges have issued a series of rulings in recent years expressing their frustration at the lack of regulated accommodation for children.

These included one exasperated High Court judge who in February 2021 sent a fourth judgment to ministers over the continuing unavailability of a regulated placement for a vulnerable 16 year old with multifaceted difficulties and at a high risk of serious self-harm or suicide.

In a speech in March a former President of the Family Division, Sir James Munby, said judges, “in desperation”, far too often found themselves having to put damaged children in unsuitable placements which are: “unregulated; far too far away from the child’s family and other support systems; and/or outside the jurisdiction, in Scotland”.

He added: “Thus far the response of Government has been to propose banning the use of unregulated accommodation. But how is that going to help, when the fundamental problem is the absence of suitably regulated accommodation?”

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