Thread by @BenTwomeyNYAS

Day 2 of the High Court Judicial Review, @article_39 v Secretary of State for Education starts shortly. Follow this thread 🧵 for my #OpenJustice live reporting.

This is the final day in court, here's a summary of Article 39's grounds (to decide the case on) by @TogetherTrust 👇

To recap, yesterday we heard the full case for @article_39 (the Claimant), so this morning we're expecting to jump straight into the government's arguments (the Defendant).

Catch up on the action from Day 1 in my previous twitter thread here 👇

https://twitter.com/BenTwomeyNYAS/status/1490995149790650368

This High Court case centres on whether the gov't decision, to only ban unregulated accommodation for under 16s, irrationally discriminated against and denied care to thousands of 16-17 year old children in care.

Here's a key argument from @article_39 yesterday...

If you liked what you heard yesterday from @article_39's counsel, then I suggest you give him a follow - @SteveBroach from @39EssexChambers is a specialist in discrimination, with a focus on disability and children’s rights cases. Read more here 👇
39essex.com/barrister/stev…

Mr Justice Holgate asks what @article_39 would like the court to do if they win. They respond that they would like to quash the ban on unreg accom for u16s, but suspend the effect of that for a period (so that new regs can be made to ban unreg accom for all children in care).

Point on language. As this centres around right to 'care', counsels are using different terms.

So judge has asked to stick to statutory language...
Art.39 counsel to use 'Looked After Child' rather than 'child in care'.
Gov't counsel to use 'care plan' rather than 'package'.

Gov't counsel calls campaign call a "catchy slogan", but says parliament has not said that every Looked After Child must receive 'care' where they live.

"The phrase 'children in care need care' is a colloquial phrase, it does not reflect the language in the Children Act."

Argument on behalf of gov't is that parliament has decided in law that there are some duties owed to all Looked After Children, but this does not include to be cared for in the accommodation in which they are placed.

Gov't counsel taking court through the primary legislation (law created by parliament), building an argument that duties to accommodate are generally separate to duties to provide care.

Proving this separation is vital to gov't case that care doesn't have to be in accommodation.

Discussion now of elements of the care plan being provided to the child where they live. It would never be all elements because of health or education for example, often being supported away from home.

Gov't counsel submits that there is no freestanding duty in the Children Act to provide 'care' to a child. Suggests no primary law says this, specific duties set out by parliament are to provide 'accommodation', provide 'services' and promote 'welfare'.

Mr Justice Holgate sums up this latest gov't argument as exposing "the dangers of shorthand" - gov't claiming that the use of 'care' in this case has become a shorthand that's alien to actual provisions in law.

Proposes that 'care' is better defined as 'welfare and maintenance'.

Gov't counsel going through each duty on local authorities, not just legally enforceable duties but also 'general duties', in relation to accommodating Looked After Children.

Point argued is that L/As must promote welfare, but gov't need not mandate care where children live.

Gov't says they will skip discussing duties to 'relevant children', as they are children who have ceased to be looked after, not relevant in this case.

[NB contradiction at the heart of this case is that children denied 'care' can somehow still be considered 'looked after']

Gov't counsel explains categories of care-experienced children/young people, including as they leave care [or care leaves them!].

Setting out framework for assisting 16-17 year old children as they enter adulthood is to demonstrate reason for treating them as separate to u16s.

Looking at the care plan now. Gov't points to recognition of growing maturity of the child by time the child is 16 years old as they agree their own care plan or pathway plan. This, by implication, shows 16-17 year olds can be treated differently without it being discriminatory.

Lots of time being taken on roles, duties & arrangements around Looked After Children.

Possible that gov't counsel is trying to make case that local authorities have everything they need to protect welfare and give support to 16-17 year olds, regardless of new gov't regulation.

Turning to placement plans - before a Looked After Child is placed in new accommodation, the local authority must be satisfied the accommodation is suitable for the child.

Again govt stressing duties to all children in care, which doesn't include providing care where they live.

Gov't acknowledges the rise in use of unregulated placements for children in care. Stated that the Sec of State commissioned independent research why & found "a lack of available placements". This came up yesterday, gov't trying to demonstrate the Sec of State acted 'rationally'.

Sec of State heard that requiring all providers to register as children's homes risked creating a greater 'sufficiency' problem - gov't counsel quotes unregulated providers: "full regulation would not address the problem and would push good providers out of the market".

Local authorities reported to gov't that there is high quality provision in the unregulated sector, but overall quality is variable. Gov't heard "strong current of opinion" that regulation would need to be light touch in order to prevent providers withdrawing from 'the market'.

Gov't counsel now describing examples of 'good' unregulated accommodation for children in care.

[N.B. in relation to the question about whether children in care need to be cared for - gov't is pointing to accommodation where 16-17 year olds can have good outcomes without care]

Gov't says @article_39's only solution is for all unreg accom to register as children's homes. Says this will drive homes out of the market.

Justice Holgate: "But if it's found children's homes are in the best interests of those [6,500] children, then that's the answer isn't it"

Gov't arguing that many concerns made about unregulated accommodation are actually about unregistered children's homes, which are already banned.

Genuine unregulated accommodation again being framed by gov't counsel as "a positive choice as part of a transition to independence".

"The Children's Homes Association thinks everyone should be a children's home, unsurprisingly" says gov't counsel.

[N.B. can't help but point out how they've just spent some time sharing views of unregulated providers as evidence of the need for unregulated accommodation...]

Getting to the age distinction in gov't banning of unregulated for u16s only, their counsel says "A 15 year old is not on the transition to independence and leaving care, because they are 15". Arguing the age distinction was 'rational' because unregulated = path to independence.

"One can't have national statistics until one introduces some form of regulatory regime" admits gov't counsel, after arguing that there is not enough evidence that unregulated accommodation is not a positive choice.

Describes lack of data as a 'chicken and egg' situation.

Gov't says @article_39 asked for all providers to register as and meet the standards of children's homes. "How are we going to possibly implement what they want?"

Cites £500m costs and 3-4 years to expand children's homes estate. With previous reasons too, that's why ruled out.

"This isn't the Sec of State saying everything is hunky dory, we don't need to do anything" - Gov't counsel now turns to their consultation on 'national standards' for currently unregulated accommodation for 16-17 year olds.

[These proposed standards are the ones that deny care]

A challenge from gov't to previous @article_39 point about care-experienced young people's consultation views being misrepresented. Gov't says vast majority of children and young people favoured banning unregulated placements for u16s. 'Some' were in favour of going further.

Gov't says extending the ban to u18s would require primary legislation, be hugely costly, and be met with resistance from accommodation providers - so it was 'rational' not to extend.

Counsel retracts certainty about requiring primary legislation, when challenged by the judge.

Gov't returns to point that there was "almost universal agreement among consulted young people that unregulated accommodation for u16s should be banned", compared to "small group" wanting u18s covered.

[N.B. again, no-one asked about u18s - only formal question was about u16s]

Going to a break now - when we return at 2:15pm the gov't counsel will move to directly address the grounds put forward by @article_39. There will then be a right of reply for @SteveBroach on Art.39's behalf. Thanks for following, please stay tuned and RT.

Reminder of grounds 👇

Gov't argues that "the court should afford a very wide margin of discretion to the statutory decision-maker", meaning the partial ban is well within Secretary of State's power.

Says this is a socio-political or economic judgement by the Secretary of State, not impeding rights.

Now a challenge to @article_39's point that regulations are irrational because there is no evidential basis for the Secretary of State to conclude that there are some older children whose needs can be met in unregulated placements...

Gov't says there IS evidence that unregulated placements meet the needs of SOME 16-17 year olds. Acknowledging the vast majority of children's best interests will probably suit a regulated setting, the gov't argues it's not irrational to decide not to regulate for all children.

"If a 16-17 year old child is placed in unregulated accommodation it is because their assessed needs require it", says gov't counsel.

Mr Justice Holgate comments that is only if the system is working correctly, but notes that is not a question for the court to decide today.

Gov't counsel asks, if the Secretary of State had implemented a full ban of unregulated accommodation, where would the 6,500 young people [currently in such settings] live?

Again emphasising the risk of making worse the shortfall in placements for children in care.

Mr Justice Holgate questions if the point about a shortage of placements is a necessary part of the government's argument, as the gov't is already claiming that there is a rational distinction between the circumstances and decision-making for under 16s and 16-17 year olds.

Going through case law now, looking at Adiatu v HM Treasury, where claimants did not win, but the government was also challenged over failure to make provision in regulations for a certain group of affected parties. Point made that equality grounds to extend ban are unconvincing.

"Blindingly obvious" says gov't counsel, that if you're consulting on a ban for under 16s then it could be considered by respondents that the chosen age goes too far or not far enough.

Denies that consultation should have explicitly asked about 16-17 year olds.

Gov't says their consultation set out why they were not proposing a ban on unregulated accommodation for 16-17 year olds, as it discussed 'national standards' instead for this group of children.

Morris v Rhondda case law cited saying no need to consult on all available options.

Returning to children's views in the consultation, as was summarised by gov't officials:
"Most of the children and young people felt that under 16 was the right age for the ban, a minority of children felt this should be extended to under 18."

Gov't calls this a fair reflection.

Gov't say that even if the Sec of State asked in consultation if a ban should extend to 16-17 year olds, it is "highly likely to make no difference" because some already said that.

"The fact that more people might also have made that point would not have changed the outcome."

Now the right to reply from @article_39's counsel, @SteveBroach.

Begins by arguing that the gov't has shown a "continued misunderstanding or mischaracterisation of our case", accepting that the Children Act does not demand that care always has to be provided where children live.

So @article_39 argues their legal case has never been to argue that care always has to be provided where children live.

The case is based on differential treatment, where the Secretary of State (not parliament) decided to create a regulatory framework excluding 16-17 year olds.

Counsel for @article_39 challenges the Secretary of State's submission that "it is implicit that children under 16 require care". This is as if to imply that those aged 16-17 do not require care.

The question of discrimination hinges on if this was rational to imply & act on.

Challenge to many parts of the gov't narrative is that it has been irrelevant to the rational justification for differential treatment based on age.

@article_39 counsel suggesting that this is because they lack of evidence for rationally excluding 16-17 year olds from the ban.

To address the gov't point of practicality, cost & shortfalls of placement options, it's suggested that a 'staged' approach could have been taken. For example, a ban for under 16s could have come first, followed a year later for 16 year olds, and two years later for 17 year olds.

"There is no positive evidence as to why unregulated placements are necessary for 16-17 year olds, or why independence should or could not be given to 16-17 year olds in regulated settings" says @article_39's counsel.

"We do not accept that these [16-17y/o] children are 'transitioning to adulthood', they are in law still children."

Gov't discriminates w/ absolute ban on unregulated accommodation for one group vs reliance on individual assessments by individual local authorities for the other.

Emphasis from @article_39's counsel that there is a clear difference in treatment based on an arbitrary cut-off age. In a nutshell:
1⃣ 16-17 year olds are children.
2⃣ Age is not a rational way to differentiate the ban of unregulated accommodation among children in care.

The Sec of State must have due regard for the equality implications of the decisions they take.

Due regard has to include what the gov't called "the blindingly obvious question", that the ban could extend to 16-17y/os, and yet this equality issue was not effectively considered.

That's the end of the two day session! Thanks for sticking with this thread, huge congratulations to @article_39 and @SteveBroach for such powerful submissions in support of 16-17 year old children in care.

Both days of #OpenJustice threads have already had over 120,000 hits!

Unfortunately I'm not able to say when the judgment will be given, Mr Justice Holgate has said he will do his utmost to deliver a judgment as soon as he practicably can, but these things can take weeks or many months.

Keep your eyes on @article_39 or my page for any updates.

A final point from me. @article_39's legal challenge didn't arrive out of the blue. So many of us for so long had been calling on the gov't to make sure all children in care are actually cared for.

The gov't chose to refuse, and preferred to defend that denial of care in court.