On 2 June 2026, in a decision known as AGNI, the Supreme Court turned back the clock on 12 years of case law defining a deprivation of liberty (DoL) for the purposes of Article 5 ECHR, overruling the Cheshire West decision from 2014, and significantly narrowing the goalposts for a DoL. See our client briefing for more information on the decision.
Predictably, the case law since then has been about the lower courts trying to grapple with the Supreme Court’s approach, the “multi-factorial” approach to identifying a confinement and the unfamiliar concept of “incapacitous consent” (for the purposes of Article 5 only) it introduced.
Four months on, we now have a handful of cases applying the AGNI decision, and though there has been some inevitable and entirely predictable inconsistency, it is useful to take stock of the themes which are emerging.
Oxfordshire CC v P – 24 July 2026 T2
This was the first reported judgment that substantively tackled identifying a DoL after the AGNI Supreme Court decision on 2 June 2026, Oxfordshire County Council v P.
P (born in 2001) had learning disability, limited verbal communication and childhood trauma. After moving through several placements, including living with her grandmother (G), she was now in a supported living placement. G argued that P should return to live with her and said that this was what P wanted.
The judge found that it was in P's best interests to stay where she was in supported living, with contact arrangements with G. Of interest is what the court said about whether that was a DoL, applying AGNI given:
there are "locked external doors" ... and P was not free to leave without 1:1 support. She needed 35 hours of 1:1 per week
there was no chemical or physical restraint, and the place allowed "some sense of relative normality", with an appearance "a world away from a prison"
however, "in reality P is subject to ongoing supervision and unable to leave the placement without support in place"
In the judge's view, "the main issue about DoL is P's consent or lack of consent" but the judge felt that no inference should be drawn on this as the evidence on P's views was disputed and unclear: "She has said lots of different things to different people at different times". Interestingly, if P were to return to live with G, the restrictions might be no less than in supported living but, "should P settle with G she would be likely to be validly consenting". Overall, Her Honour Judge Owens found that the supported living placement (though in her best interests) was "clearly a DoL". It is not clear if living with G would be a DoL, as that "would largely depend on P's reaction if she were to move there".
This raises the following questions:
whether the thinking and language here actually still look a lot like the Cheshire West acid test, talking about supervision and control, and being not free to leave?
if this were to be typical of the judicial approach, will the AGNI driven reduction in the number of DoL cases perhaps be smaller than we might have thought? The court here was ready to find a "clear" DoL in supported living, in fairly typical circumstances, and - potentially - in the family home, depending on P's reaction to being with G
if we don't know if it would be a DoL (at home with G) till that is tried and P's reaction there seen, how that aspect of AGNI can be reconciled with clear case law that any DoL should be identified and authorised before any move, to best protect P's rights from making it a done deal, or having to move twice? (see AJ [2015] EWCOP 5).
LB Brent v Mustafa – 12 August 2026
This was the first case applying the post AGNI approach to deprivation of liberty to a child.
Mustafa was a 15 year old boy with Prader Willi syndrome and additional educational needs. The local authority had a care order for him, and he had been placed in a specialist residential school for around 5 years. His care there involved 1:1 constant supervision, rising to 2:1 in the community, and physical restraint was used every 9-10 days on average, but he "likes living at the school".
Having previously applied for a court order to authorise the obvious (applying Cheshire West) DoL, the LA applied to withdraw that application, post AGNI. The child's guardian opposed the withdrawal, saying that this use of restraint in particular needed independent oversight.
The Judge (Recorder Jack) found that there was no DoL now, making some important points:
though AGNI explicitly deals only with over 16 year olds, the judge applied it directly to Mustafa as well
just as an incapacitous adult can do so, Mustafa could give "valid consent" to prevent there being a DoL, though he lacked Gillick competence (for the relevant decisions about his care and residence)
in this case, there was no DoL as Mustafa was "generally happy in his placement", and when physical restraint was used it either "has Mustafa's consent” or had a legal basis in the school's common law powers
We note that:
though there are comments about relative normality, and the benign purpose and impact of the restrictions, the focus seems to go straight to "valid consent", despite the clear statement in AGNI that the question of confinement must come first. It would have been open to the judge to say instead that there is no confinement, as there is (broadly) no objection
a relatively broad approach to "valid consent" is being taken here - despite physical restraint every 9-10 days - as the UKSC took itself in AGNI (finding at para 204) that MEG was not deprived of her liberty due to her "valid consent" and being happy living there, despite her "occasional upset outbursts", and the use of "tranquilising medication". Would the decision have been different with restraint more often, or every day?
there seems to be a high risk of blurring "consent" for the purposes of Art 5 (meaning there is no DoL), and "consent" to the restriction itself - in this case the use of restraint - when Mustafa was not Gillick competent to give consent to care / treatment
there is also an interesting point about when occasional restraint might become an integral part of the placement. Would the situation be different if, rather than every 9-10 days, it was every day or every other day?
Salford CC v AR – 4 September 2026 – T2
The third published judgment applying AGNI to a real case to question whether there is a DoL now, was a typically rich, careful and clearly expressed decision by HHJ Burrows (who was counsel for the OS in Cheshire West).
AR was a 25year old man in a supported living placement, where he would undoubtedly have been regarded as DoL under the Cheshire West criteria: 24 hour 1:1 support, 2:1 in the community, locked external doors, CCTV monitoring, physical "redirection" at times etc.
However, the AGNI case now needs the court to look more carefully, beyond those restrictions, and in this case AR was no longer regarded as DoL. In particular, he suffered from a condition that would always need such supervision and restrictions; though not in a family home any longer, he could treat his supported living placement as his own; restrictions were for his own good; it was far removed from the prison cell paradigm; and the arrangements were relatively normal (para 65).
In addition:
if there had been a confinement, AR would not have been able to give "valid consent" to this - his wishes and feelings were not clear enough. The judge nudged the bar a little higher than simply being able to show whether he was happy or not, where he does not understand the nature of the arrangements (see para 76)
though there was no DoL, so Article 5 was not engaged, there were other rights that needed to be protected by "alternative safeguards", which must provide "meaningful protection" (see para 81) and the judge quoted from the first instance decision in Cheshire West, "what happens in the real world" (where records were changed to downplay concerns): "the problem with the removal of Article 5 rights for people like AR, as my judgment will entail, is to ensure how those rights will be kept under review in the absence of [the DoLS safeguards]."
In this case, there was an ongoing dispute about contact for AR with his family - the judge was pleased that the local authority appointed a Care Act advocate "to ensure that AR's rights are observed".
The comprehensive analysis on how to apply the AGNI criteria to define objective DoL will probably draw the most attention, and his comments about the caution to be exercised before finding "valid consent" are important. But the judge's reminder of the need for meaningful protection of other rights for those who now fall outside Article 5 might be the most important message.
Essex CC v ST - 10 September 2026
This is a further post- AGNI judgment about deprivation of liberty for a child confirming that AGNI is not just applicable to adults.
In this case, however, the focus was much more on the problems there had been in finding a suitable care package, in particular around support for the child's education and mental health needs, and the strongest part of the judgment is Mrs Justice Theis picking up and building on (far too much) previous case law deploring the lack of appropriate secure provision for children.
ST was a 15 year old girl, who had been through 24 previous placements since she was removed into the care of the local authority at around the age of 7 or 8. Her need was for secure accommodation, but the "scandalous lack of provision" was such that the court was told that there were 54 live referrals for this at the time, for only 5 potential placements. The court observed dryly that this was likely to be a considerable understatement.
The judge was critical of the "generic assertions" made by the local authority, with the Children's Guardian playing a critical role in "looking under the lid" and showing that "her most basic needs have simply not been met whilst she has been in the care of the local authority". In particular, some online education was arranged, but little was done to assess or ensure the impact of this, since there was only 7% attendance, and "the labyrinthine system has totally failed to meet her educational needs for over two years". The judge was critical that "ST's interests and needs have been lost through the lack of collaborative working by the professionals", and that it had apparently taken these proceedings to "produce an action plan and an effective care plan".
As to the DoL, the judgment referred to the Supreme Court decision of AGNI and applied it to ST, confirming the approach taken in the earlier post- AGNI child case of Mustafa. AGNI is not just for adults. ST had 24 hour supervision, at 3:1, including physical restraint, locked doors and windows, which she regarded as "oppressive" and to which she objected. There was no doubt that she was still DoL, applying the AGNI test, as she would have been under the previous Cheshire West approach.
The judgment though is mainly a stark critique of "a fragmented silo way of working to the detriment of ST's most basic welfare needs".
Derby CC v SM - 3 September 2026 – T2
Another post- AGNI case finding that there was now no DoL, where there clearly would have been under Cheshire West, by Her Honour Judge Williscroft in Derby City Council v SM.
AR was a 25year old man in a supported living placement, where he would undoubtedly have been regarded as DoL under the Cheshire West criteria: 24 hour 1:1 support, 2:1 in the community, locked external doors, CCTV monitoring, physical "redirection" at times etc.
However, the AGNI case now needs the court to look more carefully, beyond those restrictions, and in this case AR was no longer regarded as DoL. In particular, he suffered from a condition that would always need such supervision and restrictions; though not in a family home any longer, he could treat his supported living placement as his own; restrictions were for his own good; it was far removed from the prison cell paradigm; and the arrangements were relatively normal (para 65).
In addition:
if there had been a confinement, AR would not have been able to give "valid consent" to this - his wishes and feelings were not clear enough. The judge nudged the bar a little higher than simply being able to show whether he was happy or not, where he does not understand the nature of the arrangements (see para 76)
though there was no DoL, so Article 5 was not engaged, there were other rights that needed to be protected by "alternative safeguards", which must provide "meaningful protection" (see para 81) and the judge quoted from the first instance decision in Cheshire West, "what happens in the real world" (where records were changed to downplay concerns): "the problem with the removal of Article 5 rights for people like AR, as my judgment will entail, is to ensure how those rights will be kept under review in the absence of [the DoLS safeguards]."
In this case, there was an ongoing dispute about contact for AR with his family - the judge was pleased that the local authority appointed a Care Act advocate "to ensure that AR's rights are observed".
The comprehensive analysis on how to apply the AGNI criteria to define objective DoL will probably draw the most attention, and his comments about the caution to be exercised before finding "valid consent" are important. But the judge's reminder of the need for meaningful protection of other rights for those who now fall outside Article 5 might be the most important message.
Lancashire CC v BM – HHJ Burrows – 2 October 2026
His Honour Judge Burrows handed down a second detailed decision among the first handful of post- AGNI cases on what amounts to a DoL for the purposes of Article 5.
BM was a 16 year old with autism spectrum disorder, severe learning disability and features of pathological demand avoidance which, together, generated extreme rigidity in behaviour. He was in an individual supported living placement, under 3:1 supervision, behind locked doors, and with occasional use of physical restraint.
As the judge said, under Cheshire West it would have been a simple matter to say that this was a DoL. However, this is no longer the case. The AGNI decision demands a "more nuanced approach", though it was the Supreme Court's intention to make this capable of "efficient, relatively speedy despatch". The key is the impact the restrictions have on BM. In this case, he did not experience them as oppressive; "He experiences the placement as home", and "derives comfort, stability and security" from the arrangements.
Though finely balanced, the judge found there is no DoL, as there is no confinement. He went on to make some important remarks about the subjective element - the lack of valid consent. If there were confinement, he would not have been willing to say that BM was giving valid consent that would have prevented a DoL. This was not because BM was not content there, but because he didn't really appreciate the restrictions under which he lived. For "valid consent" (for the purposes of Article 5), contentment does not equal consent. However, nor does consent (for this purpose only) require capacity per the Mental Capacity Act to make decisions about care and residence. "The concept [of incapacitous consent for Art 5 purposes] lies somewhere between those two positions". It seems that “are they happy” is too simplistic a question without some care to test P’s appreciation of what they are happy about.
In common with his first judgment on this (in AR), the judge was clearly pushing up the bar for reliance on the new idea of incapacitous "valid consent" to negate a DoL, and warning against over-readiness to put too much weight on apparent contentment for this. Instead, the focus was put on the importance for the objective question of confinement of P's experience of the restrictions, and the impact they have on him; that it feels like home to him; that the restrictions were enabling him to live as full a life as possible.
Finally, also in common with AR, the judgment ended by asking what was being done to protect BM's rights generally, if Article 5 would not have a role to play now there is no DoL. In this case, the Judge said, "I am satisfied that BM's Art 8 rights are protected" by the Care Order, involvement of a social worker and active care management and oversight.
Wigan MBC v PK & MK – HHJ Burrows – 8 October 2026
Most recently, we now have His Honour Judge Burrows' third reported post AGNI decision, taking real leadership of the way the case law will unfold in this area.
This case involves twin sisters (PK and MK), who are 18 years old and both with Autism and global development delay, both communicating through gesture, eye contact or facial expression, rather than verbally.
Both lack capacity for their own decisions about care and accommodation, and require assistance for all aspects of daily living.
As such, they live together in a placement, where they both have 1:1 supervision, 2:1 in the community and when bathing, and they are unable to leave independently. They both continue to have extensive contact with their family.
There was no DoL in these arrangements - "It is a place in which both young women are as at home as could be possible for people with their needs and disabilities. They are able to personalise the placement. They are able to enjoy contact with their family there. The purpose of the restrictions upon them is entirely to enable them to receive care in a safe manner. It is a relatively normal setting for young women with their level of need. They appear not to object." And, in particular, it is important to them that they live together, which they enjoy.
In common with his other post AGNI judgments, HHJ Burrows held that "due to the level of their inability to comprehend their circumstances, including the restrictions imposed upon them they would not be able to give valid consent" (in the sense used in AGNI of someone who lacks capacity for the relevant decisions nevertheless being not deprived of their liberty for the purposes of Art 5 ECHR, as they have sufficient awareness and show that they are "happy" with the restrictions that amount to a confinement).
The most important aspect, though, is once again the reflection on the implications of (now) falling outside the scope of Art 5. The DoL/S process does carry cost in the intrusion of the safeguards, of course, "but for very vulnerable people subject to considerable restrictions, the non-engagement of Article 5 may have a very high cost in an effective loss of protections".
In AGNI, the Supreme Court were assured by the government that there were sufficient protections for vulnerable people elsewhere, without Art 5 - especially in the Care Act and the MCA. In this case the judge agreed, but said that a Care Act advocate will be needed if PK's & MK's mother does not want to perform that role. He insisted that the case should be brought back to court by the local authority if that is not put in place, for any reason.
"Whilst I do not accept that Article 8 invariably requires independent review by the Court, the absence of independent advocacy may, depending on the circumstances, weaken the practical protection otherwise available. I therefore required clarification of the advocacy arrangements before deciding whether the existing framework provided sufficiently effective safeguards for the Article 8 rights of PK and MK".
Emerging themes
case law will inevitably be inconsistent for some time, with the courts trying to get used to the AGNI approach in just the same way as practitioners across health and social care
it is though already clear that the AGNI case will not be limited to adults (or at least to over 16s), as the courts are applying it directly to younger children
some case law – especially the decisions of HHJ Burrows - has shown some scepticism of the idea of incapacitous consent, pushing the bar higher for that to be relied on, and preferring to focus on the objective confinement and the role of objection / coercion, which does seem to be more solid ground for decision making
other cases, such as the Oxfordshire and Mustafa decisions, have put “valid consent” front and centre, but are showing that it is a slippery concept to apply in practice
in cases like that, we see the idea (that comes from the “valid consent” thinking) that we may not know whether or not there is a DoL until P moves to a placement (in the Oxfordshire case, home with her grandmother) and shows her reaction to it. But this is going to require a reappraisal of older, fundamental case law about the approach to authorising a DoL (e.g. in AJ) which emphasises the need to identify a DoL before it starts, so that authority can be sought without it being a foregone conclusion or needing to move P twice
so far, most of the reported cases are finding that there is now no DoL, applying AGNI, where there would certainly have been a DoL under the Cheshire West approach. We don’t yet have clear sight of the impact on the numbers of people considered to be DoL, but there’s no doubt there will be a large category of those who would previously have had the benefit of Article 5 rights and due process to protect them, who will no longer have that. The key question then is what, if not Article 5, is there to protect the rights of that group. Care Act advocates seem to have been the answer in at least some cases, and there will be lots of demand for already scarce advocacy resources
it is becoming clear that the most important question might not be where we now draw the line to define DoL, but how we ensure that the rights of people in our care are protected properly by other means when they increasingly fall outside that line.
We are working with clients across health and social care to review policies and provide training on the new legal landscape with these issues. For support, or to chat through the impact that you are seeing in practice, please do contact our health and care team.
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