High Court to hear judicial review challenge over accommodation of 16 and 17 year olds in care

The High Court will this week (8-9 February) hear a complaint that the Secretary of State for Education irrationally discriminated against foster children aged 16 and 17 by passing secondary legislation which only protects children aged 15 and under.


The legal challenge was launched by child rights charity Article 39 after the Department for Education introduced secondary legislation requiring local authorities to always place children aged 15 and under in institutions regulated and providing care.

This meant that accommodations where children do not receive daily care would remain available for teens in care aged 16 and 17 and would include shared houses, hostels, hostels and supported accommodation, Article 39 said.

In addition to the allegation of irrational discrimination, the plaintiff will further argue that:

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  • changing the law disproportionately impacts boys and children from black, Asian and minority ethnic communities;
  • the views and experiences of young people were not given due consideration by the government before introducing legislation.

Section 39 said he would tell Judge Holgate that the evidence before the government showed unequivocally that children in care aged 16 and 17 were just as vulnerable as those aged 15 and under, and that they also needed care where they lived.

In a statement released ahead of the High Court hearing, Section 39 Director Carolyne Willow, a registered social worker, said: where they live. Children of all ages need love, affection, understanding and to be listened to and cared for. I have yet to meet a parent of teenagers who believes that none of this is necessary from the age of 16.

“Children are often taken into care after years and years of excruciating neglect and abuse. This notion that a 16-year-old in care can take full responsibility for their finances, medical appointments, and decisions to stay away overnight, now backed by law, is institutional neglect. The Children Act 1989 gives every child in care up to the age of 18 the right to have their needs met and to be safe and protected. This secondary legislation effectively reduces the care system for older adolescents to a housing project with intermittent support.

“It is not good for ministers to refer this to local authorities and say they are responsible for finding the most suitable home for each child. If the government wants every child in care to be taken care of, it needs to write a law and provide the funds to make that happen.

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, housing and proper care. It doesn’t stop just because they turn 16. By not extending scope of new regulations to 16- and 17-year-olds in the care of local authorities, Secretary of State says it is acceptable that thousands of children are placed in foster care every year utterly maladjusted without receiving care where they live”.

Section 39 is represented by Oliver Studdert and Katie Wilkins of Irwin Mitchell, Steve Broach of 39 Essex Chambers and Khatija Hafesji of Monckton Chambers. The claim is funded by CrowdJustice.

Secondary legislation introduced in Parliament in February 2021 and coming into force on September 9, 2021 can be viewed here.