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High Court hears children in care discrimination claim

The High Court has been told that the Secretary of State for Education, Nadhim Zahawi, has irrationally discriminated against children in care aged 16 and 17 by making secondary legislation which protects only children aged 15 and under. Lawyers acting for a small children's rights charity, Article 39, argued that the change to the law disproportionately impacts boys and children from black, Asian and minority ethnic communities, and that young people's views and experiences were not properly considered by the government before it introduced the legislation, described as irrational and discriminatory.

Following mounting concerns about the safety and well-being of children in care who live in properties that do not have any carers and are not registered or inspected by Ofsted, the Department for Education introduced secondary legislation requiring local authorities to always place children in care in settings which are regulated and provide care – but this only applies if the child is aged 15 or younger. Accommodation where children do not receive any day-to-day care will remain available for teenagers in care aged 16 and 17 and includes shared houses, hostels, foyers and supported lodgings.

Gavin Williamson, who was the Education Secretary responsible for last year's legal change, said at the time that he could not "imagine a circumstance in which a child under the age of 16 should be placed in a setting that does not provide care".

Article 39 told the court that the evidence the government had before it categorically showed that children in care aged 16 and 17 are just as vulnerable as those aged 15 and under, and they also require care where they live. Twenty-two children in care aged 16 and 17 died while living in properties without adult carers between 2018 and 2020. The majority (66 per cent) of children in care have suffered abuse or neglect.

Article 39's evidence to the court includes safeguarding concerns raised in respect of children in care living in properties where they do not receive care or consistent adult supervision. Information shared with the charity by UK News Media shows safeguarding alerts relating to at least 763 children looked after by 42 local authorities in England between January 2019 and December 2020. Where children's ages were given, the majority were aged 16 and 17. Twenty-one local authorities gave breakdowns of the individual concerns raised – of 789 separate safeguarding concerns, a quarter (24 per cent) related to sexual abuse and child sexual exploitation; 22 per cent to physical abuse; and 16 per cent to emotional abuse. 

For an article on the Article 39 website, giving full details of the legal action, click here. For the DfE's original announcement of the legislation, click here. For the DfE's response to the consultation exercise, explaining its decision, click here.