Children in care over the age of 16 will not be guaranteed care and may be moved into independent or semi-independent housing, reports Sophia Alexandra Hall

A change in English law will allow those making decisions about where children in care live to discriminate on the basis of their age. 

The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 has made it a requirement for local authorities to always find homes for children where they will receive day-to-day care.

However, this new legal protection will only apply up until the age of 15. 

Carolyne Willow, director of children’s rights charity Article 39, told Byline Times that the new law “will affect thousands of 16 and 17 year olds who are in care, creating a two-tier care system”.

“We already know that over a third of children this age are living in semi-independent and independent accommodation where they do not receive day-to-day care or supervision,” she said. “Now, the legal change has come into force, local authorities looking to balance their budgets are certain to use this kind of accommodation even more because it is cheaper.”

Semi-independent, independent or supported accommodation is mostly run for profit. 

Article 39 has been raising awareness about the new legal changes since they were first announced in February. Over the past week the charity has run a #KeepCaringTo18 action week, encouraging organisations and individuals to join their campaign. More than 50 organisations have added their names in support of Article 39’s campaign.

However, Willow is concerned that many influential people have remained silent. “One of the tragedies of this is that children in care rely on the state to jump up and down on their behalf,” she said. “So when it is the state deciding to pursue something terrible, who is left to advocate for them?”

Why is Day-to-Day Care Important?

Rowan Foster is a 20-year-old care leaver currently living in supported accommodation. She said that the change in the law is particularly concerning for young disabled people like himself.

“I really struggled getting my GCSEs and attending post-16 education, in part, because the support I received as a disabled person was often given with the expectation of parents behind it, supporting me”, she told Byline Times. “And I didn’t have that.”

An estimated 6,000 children in care aged 16 and 17 live in accommodation such as hostels, shared houses, flats and bedsits where they don’t receive any day-to-day care.

Boys and children from black, Asian and ethnic minority backgrounds are disproportionately placed in unregulated accommodation. This group makes up more than half of children in unregulated placements, despite comprising just 26% of the care population.

Willow suggests that this figure is rooted in racial prejudice, including towards unaccompanied asylum-seeking children, and a lack of empathy and kindness towards teenagers. 

While ministers have promised to regulate placements in semi-independent, independent or supported accommodation, the four proposed national standards by the Department for Education deliberately omit any requirements to provide care.

The first report of the Independent Care Review, ‘Case for Change‘, admits that the change would “remove the option of high-quality semi-independent homes for 16 and 17 years, which would be to the detriment of some young people”.

“Living in supported accommodation has exposed me to things I wasn’t really okay to experience at 20, let alone at younger ages,” Foster told Byline Times. “As a young woman surrounded by a building of mostly men, many of whom are a lot older than me, I often feel uncomfortable. There was a sexual predator. Someone died of a drug overdose. Is this really what we want to be exposing vulnerable children to?”

At the end of 2020, the former Children’s Commissioner, Anne Longfield, called for the Government to change the law to stop councils placing under-18s in care in unregulated accommodation. This followed the publication of the ‘Unregulated‘ report, which found that many 16 and 17 year olds were living alongside adults struggling with mental health difficulties, addiction, or who had recently left prison.

The report also condemned the “outdated belief” that children aged just 16 should be ready to become independent. However, this didn’t stop the amendment, which seemingly advocates this belief, being laid before Parliament just five months later.

“It’s not just 16 and 17 year olds, younger teenagers will be harmed by this legal change too,” Carolyne Willow said. “It will normalise and give legitimacy to the unhealthy obsession there is in the care system with moving teenagers on and preparing them for independence.”

She is also worried about the emotional impact on younger teenagers. “I feel really upset thinking about 14 and 15 year olds hearing about the legal change, and worrying that they’ll be forced to leave their foster family or children’s home on or around their 16th birthday,” she added.

What Changes at 16?

Part of the issue, Rowan Foster believes, is the ‘othering’ that goes on in society’s attitudes towards children in care. 

“Due to many different influences, including television and social media, teenagers aren’t seen as children much anymore,” she said. “Girls of 15 have often already experienced sexual harassment of some form. And when a teenager doesn’t conform, ‘misbehaves’, they’re seen as delinquents and condemned by those around them.”

Foster also knows that many teenagers are eager for independence – but that doesn’t mean that they are safe or ready to live independently. 

“A lot of teenagers have to grow up very quickly these days, and a lot of them really want independence,” she said. “But that independence doesn’t have to sacrifice their safety. Children deserve to be kept safe whether they believe they are deserving of it or not.”

Willow told Byline Times that the cut-off age “is no mistake”.

“The Government wrote this age-based rule into law,” she said. “Ministers and those advising them made a conscious decision that the law must only guarantee care to children in care who are aged 15 and younger.”

Article 39 argues that this legal change is discriminatory by not guaranteeing care to all children up to the age of 18. After months of campaigning by the charity, the High Court has agreed to allow a judicial review of the policy change. 

“We want to achieve care for every child in care,” said Willow, “It shouldn’t be too much to ask in 2021 that all children in care actually receive care where they live.

“I think anyone who has lived in care, or has had the privilege of working with children in care and care leavers, will have first-hand experience of the hurt and devastation that comes from children going without love, affection and security, and not being looked after and cherished.”

An Open Letter

Representatives from 54 organisations have signed the open letter below challenging the law change.

Today the law changes in a deeply regressive way for children in care in England. Following wide-ranging evidence of children in care, most of them aged 16 and 17, suffering serious harm in what’s called semi-independent and independent accommodation, the Department for Education introduced new duties on local authorities.

The law now stops councils from putting children in care in places where they do not receive day-to-day care – but only if the child is aged 15 or younger.

This is discriminatory and will cause tremendous harm to children aged 16 and 17. It has created a two-tier care system. Our organisations reject this age-based partition of children in care. It is disgraceful that we’re having to make the case for teenagers in care to actually receive care as we celebrate the thirtieth anniversaries of the Children Act 1989 and the United Nations Convention on the Rights of the Child coming into force in our country, both of which define children as being under the age of 18.

Carolyne Willow, Founder Director, Article 39
Debbie Ariyo, CEO, AFRUCA-Safeguarding Children 
Berni Baker, CEO, Baker & Joy Advocacy and Independent Person Services

Simon Barrow, Director, Ekklesia
Dr Tim Bateman, Chair, National Association for Youth Justice
Jodie Bourke, Senior Social Worker, Baobab Centre for Young Survivors in Exile

Ellen Broomé, Managing Director, CoramBAAF
Jane Chevous, Director, Reshapers CIC and Survivors Voices
Valerie Clark, Director and Senior Solicitor, Youth Legal
Jane Collins, Director, Foster Support
Martha Cover, Coram Chambers
Tom Dennison and Phil Hogan-Birse, Directors, XYP Childcare
Pavan Dhaliwal, Chief Executive Officer, Revolving Doors
Melody Douglas, Chief Executive, Rees Foundation
Patricia Durr, CEO, ECPAT UK (Every Child Protected Against Trafficking)
Andy Elvin, Chief Executive, TACT Fostering
Kathy Evans, Chief Executive, Children England
Terry Galloway, Norman Galloway Homes
Annie Gibbs, Founder, Amour Destine
Pippa Goodfellow, Director, Alliance for Youth Justice 
David Graham, National Director, The Care Leavers’ Association
Anna Gupta, Association of Professors of Social Work
Christopher Hardy, Prospect Training and Consultancy
Jules Hillier, Chief Executive, Pause
Val Hogan, CEO, Verve Recruitment (Fostering)
Dr Carol Homden, CEO, Coram 
Naomi Jackson, Development Lead, Social Workers Without Borders

Siobhan Kelly & Hannah Perry, Co-Chairs, Association of Lawyers for Children
Ben Kernighan, Chief Executive, Leap Confronting Conflict
Mark Kerr, Chief Executive, The Centre for Outcomes of Care
Isabelle Kirkham, Reclaim Care
Cyrus Larizadeh QC, Chair,Family Law Bar Association
Louise King, Director, Children’s Rights Alliance for England
Victoria Langer, Interim Chief Executive, Become
June Leat, Chair, Parents of Traumatised Adopted Teens Organisation (the Potato Group)
Mark Lee, Chief Executive, Together Trust
Carole Littlechild, Chair, Nagalro – the Professional Association for Children’s Guardians, Family Court Advisors and Independent Social Workers
Sharon Martin, Chair, National IRO Managers Partnership (NIROMP)
Louisa McGeehan, Chief Executive, Just for Kids Law
John McGowan, General Secretary, Social Workers Union

Nuala Mole, Founder and Senior Lawyer, The AIRE Centre
Temi Mwale, Executive Director, The 4Front Project
Ed Nixon, Every Child Leaving Care Matters
Lynton Orrett , Nexus Chambers
Maya Pritchard, Refugee and Migrant Children’s Consortium
Claire Richardson, Team Leader, ‘Stand up Speak up’
Brigid Robinson, Managing Director, Coram Voice and Young People’s Programmes

Laura Slater, Development Director, Equal Education

Paul Smart & Jon Fayle, Co-Chairs, NAIRO (National Association of Independent Reviewing Officers)
Jonathan Stanley, Principal Partner, National Centre of Excellence for Residential Child Care
Maris Stratulis, National Director, British Association of Social Workers (BASW) England

Rita Waters, Group Chief Executive, NYAS (National Youth Advocacy Service)
Nick Watts, Director, Together with Migrant Children
Kevin Williams, Chief Executive, The Fostering Network


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