In a week’s time, the law governing decisions about children in care in England changes dramatically. The Department for Education has created a two-tier care system which we strongly oppose because of the harm and suffering it will cause to children.

From 9th September 2021, for the first time ever, the law in England discriminates on the basis of age when decisions are made about where children in care live. 

Following huge concern* about the serious harms caused to children in care living in supported accommodation (known as ‘semi-independent’ and ‘independent’ accommodation) – shared housing, bedsits, hostels and flats – the Department for Education introduced secondary legislation in February 2021. This comes into force next week.

  • The new secondary legislation lists the types of ‘other arrangements’ councils can make for children in care who are aged 15 or younger, when it is not possible for them to live with a parent or someone else who is connected to them, or with foster carers or in a children’s home. 
  • All of the places on the list are regulated by Ofsted or the Care Quality Commission (or equivalent bodies in Wales and Scotland). They are all places where children receive care. 
  • This means councils will still be able to put children in care who are aged 16 or 17 in places where they do not receive any care. Over one-third of 16 and 17 year-olds in care (more than 6,000 children) are already living in places where they do not receive any care. This is bound to increase with this change to the law – because it is telling councils it is OK to treat children differently on the basis of their age.
  • Boys and children from black, Asian and minority ethnic communities will be disproportionately affected. 
  • Separately, the government plans to introduce standards for supported accommodation for children in care aged 16 and 17. However, it is deliberately omitting any requirement to provide care. This is because quality standards already exist for establishments providing care and accommodation. These are children’s homes standards. 
  • Instead of making those who run supported accommodation follow the existing nine quality standards for children’s homes, the government has drafted an inferior set of four standards. We don’t yet know what plans they have for inspection. But our central concern is that teenagers aged 16 and 17 who are in care will be going without any care where they live.
  • Parents do not stop caring for children once they reach 16. This is a critical age for education and for enjoying new experiences and relationships with the safety net of loving family support. 
  • We are deeply concerned about the safety and well-being of 16 and 17 year-olds in care today, and the longer-term impact of forcing them to fend for themselves much too early. Homelessness, mental health and prison statistics already show the care system fails far too many young people.

Secondary legislation differs from Acts of Parliament because it is made by government ministers. It does not have to have the approval of Members of Parliament or Peers in the House of Lords. 

Article 39 children’s rights charity is legally challenging these discriminatory changes through a judicial review, which is currently listed to be heard in the High Court in December. 

We urge organisations and individuals who want every child in care to receive care where they live to join our #KeepCaringTo18 week of action.

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