Thread by @BenTwomeyNYAS

Are 16 and 17 year old children being unlawfully denied care in unregulated accommodation?

Today and tomorrow I'm live tweeting from the High Court in @article_39 v Secretary of State for Education.

Follow this thread 🧵 for Day 1 of my live #OpenJustice reporting.

A little background first - After years of campaigning against unregulated accommodation for children in care by #KeepCaringTo18, @BBCNewsnight, charities & care-experienced people, the UK Government decided to ban the use of that type of accommodation for under 16s in Sept 2020.

The decision to only protect under 16s from the harms of unregulated accommodation left thousands of 16-17 year olds unprotected. The suggestion was that children in care who are under 16 always need care, whilst children in care who are aged 16-17 do not necessarily need care.

Does this discriminate against 16-17 year olds?

You can read @article_39's summary of the case and their 'skeleton argument' (a short overview of their key legal discussion points) here 👇
article39.org.uk/2022/02/08/hig…

As we begin, Mr Justice Holgate, the judge in this case, pays tribute to the children who have made submissions to the court as witnesses to their experience in unregulated accommodation. It is recognised that a significant body of evidence has been provided from both sides.

The lawyer advocating on @article_39's behalf begins by defining a 'Looked After Child' as set out in law.

"These are inherently among the most disadvantaged children" - the test in this case will be that the decision to deny care to Looked After Children is 'irrational'.

Defining 'care' will be central to this case, which is now being explored. The best example in regulations is found in the quality and purpose of care standard of The Children’s Homes (England) Regulations 2015 👇legislation.gov.uk/uksi/2015/541/…

Mr Justice Holgate is pressing the question of defining care. There appears to be no primary legislation that defines care, which is why the regulations offer the most comprehensive set of detailed duties related to care in accommodation.

Discussing different types of accommodation & carers as set out in Children Act 1989. @article_39's advocate putting forward that distinctions between those aged 15 and under and those aged 16-17 have generally not been made, and that distinction should be considered irrational.

On the duty for local authorities to have 'sufficient' places for Looked After Children to live, Mr Justice Holgate asks what mechanism exists for checking local authorities are compliant. This is an issue that is looked at by Ofsted but it's not a specific inspection criteria.

Back to the statutory definition of care (this will keep coming up!), @article_39' advocate points to what must be included in a care plan. This is why evidence of disadvantage for 16-17 year olds in relation to health, education etc shows lack of care.
legislation.gov.uk/uksi/2010/959/…

Mr Justice Holgate describes it as "hopeless" that there is no definition of unregulated accommodation in law. The UK Gov't counsel suggests that unregulated means any home that is not subject to a regulatory regime. Lack of clear definitions in law are creating sticking points.

Summing up overarching points for @article_39 incl
1⃣ Unregulated accommodation is being used for most vulnerable children.
2⃣ Distinctions based on age are not relevant to the issues.
3⃣ Evidence of 16-17 year olds not being listened to when placed in accommodation without care.

Mr Justice Holgate asks about children's choice - if @article_39 win the case then will a 16-17 year old be unable to choose accommodation without care?

Art.39's counsel responds with the submission that "there is no justification for treating 16-17 year olds differently".

Reaching the crux of @article_39's argument now - wherever a Looked After Child is accommodated, they must still have a care plan.

If they have a care plan then they must need care.

So to recognise that children need care, but deny it at the place they live, is irrational.

Art.39's counsel submits that the Secretary of State banned types of unregulated accommodation for children, aged 15 and under, who are in no different position from 16-17 year olds expected to continue entering this accommodation.

"This differential treatment makes no sense."

The gov't consultation document on this issue stated that children "under the age of 16" who are in care are often very vulnerable and have complex needs, and so accommodation focused on preparing them for independence cannot meet their needs.

@article_39 ask why not "under 18"?

Gov't has argued semi-independent accommodation prepares young people to transition to adulthood. But @article_39 say the vast majority of those living in regulated children's homes are 14-17 years old. Therefore regulated arrangements already prepare for independence, with care.

The gov't is proposing regulating currently unregulated accommodation for 16-17 year olds in order to offer 'support' but not 'care'.

Once again, Mr Justice Holgate asks for definitions, and there is no legal definition of 'support' as compared to care.

Counsel for @article_39 argues that most care needs to be provided where children live. That's where children will see the level of 'support' that crosses the line into becoming 'care'. Central point again that there is no rational reason to support, not care for 16-17 year olds.

Now quoting former @ChildrensComm @annelongfield, "For too long children have been placed in this inappropriate accommodation as the sector has gone unchecked...This is about the basic standards of care we provide to children looked after by the state."
fenews.co.uk/education/chil…

Carolyne Willow's (@article_39 Director) witness statement highlights 'Staying Put' arrangements introduced in 2014 allowing children in foster care to remain in care until the age of 21.

This reveals the stark difference in treatment of 16-17 year olds in unregulated homes.

"In reality, when children are placed in unregulated accommodation they receive no care and cannot receive care" says @article_39's counsel.

Organisations incl. @MindCharity have stated that vulnerability & poor outcomes have no meaningful distinction between u16s or 16-17y/os.

Evidence from @ali__gunn @TogetherTrust demonstrates that large numbers of children placed in unregulated accommodation are not in education, employment or training. The Refugee & Migrant Children’s Consortium show detrimental impact on the health & wellbeing of refugee children.

Having made the case of discrimination against 16-17 year olds based on age, @article_39's counsel now argues that the use of unregulated accommodation is discriminatory due to disproportionately impacting boys and children from black, Asian and minority ethnic communities.

Gov't's response following their consultation is discussed, where stated "a small group of respondents were of the view that no child should be placed in ‘unregulated provision’ and that the ban should be extended to cover all children in care...including those aged 16 and 17."

Counsel for @article_39 argues that for the government to say "a small group of respondents" is unfair when the government did not ask the question in the consultation of whether there should be regulation for all children, including 16-17 year olds.

"All rise" - The High Court breaks until 2pm. Thank you to everyone following this thread 🧵so far, please do like/RT/comment as much as you can to raise awareness of @article_39's #KeepCaringTo18 case.

I'll pick up here as the session resumes shortly, stay tuned!

Now @article_39's counsel points out that the UK Gov't expressly decided not to create a statutory definition of care as part of their consultation response.

[Sidenote - This will make it tough for gov't to claim confusion over defining care...]

p.16👇
assets.publishing.service.gov.uk/government/upl…

The Sec of State's evidence to the court states "a key driver of the use of unregulated provision is a lack of available registered children’s homes and foster placements at a local level".

This contradicts alleged drivers of 'best interests' and 'preparation for independence'.

Evidence from young people supported by @NYASServices referenced, particularly that the risks of placement breakdown/instability for 16-17 year olds are higher than for younger children.

Almost no young people reported that they had a say when entering unregulated accommodation.

Counsel for @article_39 quotes case law from the Supreme Court, where Lady Hale concluded that power must not be used arbitrarily, there must be a rational reason for a distinction being drawn...

Art.39 returns to core argument that distinction in treatment between children on the basis of age is not rationally justified. This would mean that power has been exercised arbitrarily.

Case law states a distinction based on age should show “a difference between the substantial majority of the people on either side of the line.”

@article_39 counsel says there is no meaningful difference between “the substantial majority" in relation to children's need for care.

Comparing now to another law related to care, @article_39's advocate points to the lack of distinction for 16-17 year olds compared to younger children under the Mental Health Act.

For this Act, all under 18s (ie children) are treated the same under law.

Key point on what may come next - @article_39's case is focused narrowly on proving the distinction based on age is irrational & discriminatory. They are not in court arguing for a positive obligation on the gov't to ban all unregulated accommodation for children in care...

Mr Justice Holgate asks if case outcome could be the gov't reversing ban on unregulated accommodation for under 16s. @article_39's counsel says as gov't concluded such settings are inappropriate for u16s, it must surely extend the ban to 16/17 year olds rather than remove it.

Argument now made on behalf of @article_39 that the Secretary of State has demonstrated no meaningful consideration of equality implications when making regulations for Looked After Children that excluded 16-17 year olds.

Counsel for @article_39 argues that "resource constraints" for the unregulated accommodation ban are relevant to what decision is taken after there has been regard to the equality matters. However, gov't documents show resources were considered before or without this full regard.

The gov't did not consult on whether the ban on unregulated accommodation should be extended to 16-17 year olds.

The academic review of responses, which fed into the gov't consultation outcome document, did not include any analysis of the views expressed by 165+ young people.

So @article_39 continues that "it was not in any way obvious" why the gov't decided to omit from their consultation the option of a ban to include 16-17 year olds.

If the gov't felt it was an obvious option, they might consider if disadvantaged young people would recognise that.

Arguments around the gov't consultation are centred not on discrimination, like previous grounds mentioned, but instead on the test of 'fairness'.

@article_39's counsel is claiming that the consultation on unregulated accommodation was so unfair so as to be unlawful.

Mr Justice Holgate suggests that NGOs submitting to the consultation would have understood they could propose the banning of unregulated accommodation to incl 16-17 year olds. @article_39 respond that care-experienced young people may be less likely to answer unasked questions.

Lots of time taken now seeking to understand the differences between the actual submissions to the gov't consultation on unregulated accommodation, compared with the way the Secretary of State then characterised the submissions in his published response...

Counsel for @article_39 quotes a letter from @NYASServices to the Secretary of State that "conclusions drawn by the government in relation to unregulated accommodation do not reflect our position or that of the children and young people who we connected the consultation with”.

"We have not seen anywhere in the evidence an accurate reflection of the views of young people" says @article_39's counsel.

Recognising that the Sec of State isn't expected to read every submission, it's argued views of young people were not appropriately summarised for him.

The gov't characterised young people's responses as being overwhelmingly supportive for u16s being the 'right' age to ban unregulated accommodation for.

This flies in face of @article_39 & @NYASServices focus groups as part of that consultation [N.B. I was there for the latter!]

Wrapping up for the day, Mr Justice Holgate highlights some questions to return to tomorrow, including...
❓ Difference between care and support?
❓ Must accommodation providers provide all elements of a care plan?
❓ Difference between 'independent' and 'semi-independent' homes?

Counsel for the Secretary of State hints at what may be argued tomorrow for the gov't - pointing out the distinction between the statutory regime and erroneous decisions in individual cases.

In plain English - the gov't have got this issue right, local authorities get it wrong.

That's the end of Day 1! Thanks so much for following this thread 🧵 and all your encouragement for me and the claimants in court, @article_39 📢

Tomorrow is a slightly earlier start at 10am, tune in to my page for the second & final day of High Court #OpenJustice live coverage.

Hi there! If you've made it to the end of this thread, then first of all thank you! Just letting you know that Day 2 reporting can be found here, will be good to have you with us for the second half 👇

https://twitter.com/BenTwomeyNYAS/status/1491349206577352707