Yesterday, the UK High Court handed down its judgment on a controversial law which protects children in care aged 15 and under, but not those aged 16 and 17. In making this decision, the High Court has backed the UK Government’s stance that is it not necessary for 16 and 17 year olds to receive a full package of care.
What Decision Has Been Made by The High Court?
Article 39 is the children’s charity who brought the case against the government,. Their case rested on three grounds:
- The Education Secretary irrationally discriminated against 16 and 17 year-olds
- The Education Secretary did not fulfil his equality duties
- A consultation undertaken by the Department for Education was unfair
Article 39 brought this case for judicial review after years of campaigning against unregulated accommodation for children in care. These campaigning efforts were also part of a wider collaboration called ‘Keep Caring to 18’, as well as NYAS’ ‘Regulate’ campaign.
What Action Has Already Been Taken to Stop Unregulated Accommodation?
In September 2021, pressure from the children’s rights sector led the UK Government to ban the use of that type of accommodation, but only for those aged 15 and under in England. This left thousands of 16 and 17 year-olds unprotected, without equivalent regulation and care in their homes.
Through this decision, there was a suggestion that children in care aged 15 and under always need care, whilst those aged 16-17 do not necessarily need care where they live. During the court session, NYAS was cited in evidence several times for our view and the experiences of children who we support. Our Director of Policy and Research, Ben Twomey, tweeted live updates from the High Court on both day 1 and day 2.
29 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’. The secondary legislation introduced last year is the first time the law has specified the type of settings where children in care may live on the basis of their age.
Why Did The High Court Rule Against Article 39?
The presiding judge, Mr Justice Holgate, rejected the claim brought by Article 39 that ministers had irrationally discriminated between highly vulnerable children on the basis of their age. He found 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”. In other words, children in care are not necessarily legally entitled to be cared for where they live.
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, he judged that it could not be irrational to draw a distinction on the basis of age.
How has the Children’s Rights Sector Responded?
Rita Waters, NYAS Group Chief Executive, said: “This is a very disappointing judgment that allows the UK Government to continue excluding 16 and 17 year olds from the guarantee of care and security that the care system should exist to provide. We thank Article 39 for their tireless efforts to bring this legal challenge on behalf of care-experienced children.
“This is a sorry chapter for the UK Government, when a small charity must pursue legal routes to defend the principle that children in care have the right to be cared for. I hope, for the sake of all care-experienced children and young people, that Article 39 is granted permission to appeal this judgment.”
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 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.”
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.