On 2 June, the test for determining a deprivation of liberty was reset by the Supreme Court. Its judgment, A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 ([2026] UKSC 16), also known as ‘AGNI’, marks a fundamental change in UK law, which is of immediate effect.
Although there is now a wealth of commentaries on AGNI, little attention has been given to this judgment’s implications for children and young people aged under 18. Similarly, the Department of Health’s interim guidance on this ruling is focused on adults. However, AGNI’s ruling makes clear that it concerns 16- and 17-year-olds as well as adults (see paragraph 1 of the judgment). Given the change in how to determine whether a person’s care arrangements amount to a deprivation of liberty, AGNI is likely to impact upon children aged under 16 as well.
We set out below some initial thoughts on the changes introduced by AGNI: why they are relevant to children and young people aged under 18 and the importance of this judgment for all practitioners working with this age group.
Deprivation of liberty: Importance for all ages
The question of whether the arrangements for a person’s care might give rise to a deprivation of liberty is relevant to individuals of any age because if they do, the safeguards under Article 5 (the right to liberty) of the European Convention on Human Rights (ECHR) are engaged.
One of Article 5’s key safeguards is that any deprivation of liberty must be authorised by a clear legal process. For those aged under 18, this will require either a court order (e.g. under section 25 of the Children Act 1989, the Court of Protection (acting under the Mental Capacity Act 2005), or the High Court (inherent jurisdiction)) or the Mental Health Act (MHA)1983 (in relation to admission to hospital for assessment and/or treatment for mental disorder).
Accordingly, all those providing care, whatever the person’s age, must be alive to the possibility that the arrangements for such care (such as placing restrictions on when the person can go out, limiting their contact with others, or the use of physical restraint) may constitute a deprivation of liberty – and if it does, legal authority for that deprivation of liberty must be sought.
AGNI is controversial because it has raised the threshold for what counts as a deprivation of liberty. Following this judgment, many people who were previously regarded as being deprived of their liberty are not any longer. In turn this means that they are no longer entitled to Article 5 safeguards which, as noted above, for those aged under 18 will include either the oversight of a court or the requirement to comply with the detailed procedures under the MHA 1983. However, AGNI makes clear, whether a deprivation of liberty arises requires careful consideration of the person’s particular circumstances: what their care arrangements entail and the person’s perception of such arrangements.
When does a ‘deprivation of liberty’ arise?
For a deprivation of liberty to arise, the European Court of Human Rights requires three conditions to be met, which it described in ‘Storck v Germany ([2005]’ as follows:
- ‘the ‘objective element of a person’s confinement in a particular restricted space for a not negligible length of time’
- the ‘subjective element’ – the person ‘has not validly consented to the confinement in question’
- the State responsibility element – whether the deprivation of liberty is ‘imputable to the State’.
These ‘Storck conditions’ have been applied by our national courts when determining whether a person – of whatever age – is being deprived of their liberty.
One way of thinking about these Storck conditions is that when considering whether a person’s care arrangements mean that they are being deprived of their liberty, we need to ask three questions:
- whether the person is being confined
- if they are, whether there is any valid consent to that confinement
- if there is no such valid consent, whether the ‘State’ (i.e. a public body, such as a local authority or an NHS body) is in any way responsible for the person’s confinement.
Although in AGNI the Supreme Court confirmed that a deprivation of liberty arises when the Storck conditions are met, it decided that how our national courts were determining whether the first two of these conditions were met, was wrong.
What has AGNI changed?
AGNI has overruled the previous Supreme Court decision in P v Cheshire West and Cheshire Council: P and Q v Surrey County Council ([2014] UKSC 19), known as ‘Cheshire West’, by holding that:
- Cheshire West was wrong to conclude that a person would be confined simply because they were ‘under continuous supervision and control’ and ‘not free to leave (known as ‘the acid test’)
- Cheshire West was wrong to assume that individuals lacking capacity to make decisions about their care arrangements could not give valid consent to their confinement.
Following AGNI, meeting the acid test will not be enough to conclude that the person is confined. Instead, this will require a ‘multifactorial assessment’ of the arrangements for that person’s care.
The Supreme Court has also broadened the circumstances in which a person may give ‘valid consent’ to a confinement.
Determining a deprivation of liberty after AGNI
To determine whether a person’s care arrangements means that they are being deprived of their liberty still requires consideration of the three Storck conditions. The change introduced by AGNI is how to determine whether those conditions are met.
Ascertaining what amounts to a deprivation of liberty requires scrutiny of:
- the person’s care arrangements
- the person’s perception of those arrangements
- whether the living arrangements are being imposed on the person against their will.
Given the range of factors that must be considered following the decision in AGNI, it is difficult to give a precise and concise definition of what now amounts to a deprivation of liberty. However, all three of the Storck conditions must be met. The following points will need to be considered by practitioners when they are involved in planning and scrutinising a person’s care arrangements.
The confinement question
The starting point is a ‘multifactorial assessment’ of that person’s situation.
- A range of factors must be considered, ‘including the type, duration, effects and manner of implementation of the measures in question’ (meeting the acid test will not be enough).
- The effect of the arrangements on the person is of crucial importance – specifically whether they object to them (e.g. showing a wish to leave).
- In cases that are a long way from the situation of a prisoner in a cell, the purpose of the restriction will be a relevant factor (it is suggested that the purpose of the restriction would be relevant when the person is living in their own home but further clarity will be needed on other cases in which it might be relevant).
- There must be some form of coercion: the arrangements being imposed on the person against their will.
The lack of valid consent question
This requires careful consideration of the person’s wishes and feelings about their care arrangements.
- Previously, only people with the capacity (or in the case of children, the competence) to make such decisions could give valid consent to their confinement.
- However, AGNI adopts a broader approach in holding that even if a person lacks the capacity under the Mental Capacity Act 2005 to make decisions about their care arrangements, they may be able to give ’valid consent’ to their confinement. Whether they can do so depends on their ability to understand their situation sufficiently to be able to then express a view about it. Accordingly, close attention is needed to determine the effect of the restrictions on the person and the person’s attitude to them. Practitioners will need to consider how this assessment is undertaken and who would be best placed to do this.
The state responsibility question
This is likely to be met wherever the person is receiving health and/or social care given that it applies not just where a public body is directly responsible for the person’s situation (e.g. providing the care) but also where it knows, or ought to know, of the person’s situation (e.g. is aware of the care arrangements).
Implications for practitioners working with children and young people
It will be important for all those practitioners responsible for providing or arranging care for children and young people (in any setting including in residential care, hospitals and in the community) to consider the ruling in AGNI and how it impacts upon their practice.
Practitioners may need to seek legal advice and specific training is likely to be needed. Further case law with the courts being asked to clarify how this ruling is to be applied in practice is expected. So updates on the law will be essential.
Whether AGNI’s approach to determining a deprivation of liberty applies to children aged under 16 – and how – will also need to be considered. We suggest that it will impact upon this age group because the way in which the courts determined if a child was deprived of their liberty was based on Chesire West’s approach, which has now been overruled by AGNI.
Before AGNI, the courts focused on the ‘supervision and control’ over a child when determining if that child was confined and compared this to what would be normal parental control for a (non-disabled) child of the same age. Given that AGNI has made clear that it is not enough to consider ‘supervision and control’ when deciding if the first Storck condition is met, the courts may consider that this change also applies to children, so like people aged 16 and over, it will be necessary to apply a multifactorial approach to determining whether a child is confined.
In relation to consent, a significant question for the courts is likely to be when and how to apply AGNI’s concept of ‘valid consent’. For children aged under 16, an outstanding issue is how their competence to consent to their confinement is assessed and what might influence competence, including the age of the child. For those who lack competence the courts have held that parents can consent to their child’s confinement. Following AGNI further clarification is needed on the circumstances in which parents can consent to their child’s confinement, in particular how to ensure that their child’s wishes and feelings are taken into account.
Conclusion
Nuffield Family Justice Observatory’s work has highlighted that the arrangements for many children and young people who are subject to deprivation of liberty orders involve them being cared for in inappropriate accommodation that they do not wish to live in, often far from their family, friends and community. They are subject to very high, and frequent, levels of restraint and often over long periods of time. Our view is that such cases would continue to amount to a deprivation of liberty. Robust safeguards are necessary, as part of clear plans that are reviewed regularly to ensure that restrictions are only applied if they are necessary and proportionate and include action to enable planned reductions in restrictions, along with steps to reduce risk of harms.
While AGNI may lead to fewer children and young people being deemed to be deprived of their liberty, the ruling makes it clear that each person’s circumstances will need to be considered and in detail. The purpose and nature of any proposed restrictions will need to be carefully assessed. Importantly, children and young people’s wishes and feelings about the situation – including the effects of the restrictions placed on them – will also need to be sought and understood.
Therefore, AGNI re-emphasises the need for careful, considered and skilled practice whenever children and young people need high levels of care and the question of the need for restrictions are being raised.
The implications of the AGNI ruling will need further consideration in the coming months. Clear guidance for practitioners from the Department for Education alongside the guidance from the Department for Health and Social Care, would be valuable, in particular to address:
- specific, age-related questions about how a child’s competence to consent is to be assessed and on seeking children and young people’s wishes and feelings
- the safeguards that are available to children and young people receiving care without their consent (which may differ depending on the range of settings in which they may be placed, including, for example residential homes and hospitals)
- the respective responsibilities and expectations for different professionals, including for those who are responsible for the scrutiny and oversight of care plans.
In the meantime, we conclude that there are several areas to hold in mind as the legal landscape around what constitutes a deprivation of liberty evolves.
Children and young people’s rights must be foregrounded in care planning and efforts to provide multiagency support
This means understanding how the different legal frameworks apply, ensuring that children and young people have opportunities to participate in decision making and that their right to express their wishes and feelings about their care, alongside their parents and carers is respected.
Safeguards need to be in place and care plans should be regularly reviewed and scrutinised
The role of independent advocacy and oversight is likely to be even more important now, where there is consideration of whether restrictions placed on a child or young person are lawful, necessary and proportionate.
Knowledge about legal developments in relation to deprivation of liberty will be necessary
Practitioners will need to ensure that they are up to date with current case law and relevant guidance.
Improving care for children and young people in complex situations remains a priority, recognising that they have multiple needs
Multiple needs may include mental health and neurodevelopmental conditions and disabilities, which may also intersect with experiences of abuse and neglect, poverty and discrimination.
Leadership across and between all the relevant agencies is essential to provide the structure and relational safety that children and young people need
This means leaders taking joint responsibility, sharing and managing risk together and resourcing integrated services and support.
These considerations are important for practice in relation to all children and young people who may be in complex situations and who remain vulnerable – whether or not their circumstances are deemed to amount to a deprivation of their liberty after AGNI.
For further information about the needs and characteristics of children subject to DoLs applications, read our research.
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