FREE CHAPTER from ‘A Practical Guide to Deprivation of Liberty Orders for Children and Young People in the Family Court and Court of Protection – Second Edition’ by Jemimah Hendrick & Amelia Culverwell

06/05/2026

CHAPTER ONE – WHAT IS A DEPRIVATION OF LIBERTY ORDER?


This chapter sets out:

  • The authority on deprivation of liberty orders:
    • The previous authority of Cheshire West
    • The new authority of AGNI
  • A new test: multi-factorial contextual assessment
  • Consent:
    • under 16s
      • child’s own consent
      • parental consent
    • over 16s
  • Attribution of responsibility to the state
  • what to do with your current DOLs orders

 

The leading authority

The right to physical liberty is protected under Article 5 EHCR. Strasbourg jurisprudence has considered extensively when living arrangements for adults, young people and children amount to a deprivation of their article 5 rights, and therefore required court authorisation. In P v Cheshire West and Chester Council and another; P and another v Surrey County Council [2014] 2 All ER 585 (“Cheshire West”) Lady Hale set out a comprehensive history of the deprivation of liberty safeguards [2]-[10] and went on to set out what is meant by a deprivation of liberty at [19]-[32]. Cheshire West set out an “acid test” for determining whether care arrangements for a child, young person or adult required a DOLs order by the court and had been the leading authority in the UK in relation to DOLs orders.

However, on 2 June 2026 the Supreme Court handed down judgment in A Reference by the Attorney General for Northern Ireland (AGNI) of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (“AGNI”). AGNI has overruled Cheshire West, and changed the test for what amounts to a deprivation of liberty.

The judgment states that it considers the question of what “counts as “deprivation of liberty” under article 5(1) of the European Convention on Human Rights (“the Convention”) for adults (by which we mean those aged 16 and over) assessed as not having the mental capacity under domestic law to make decisions for themselves about their residence and care arrangements, who are living in community settings amounting (or potentially amounting) to confinement” [1] (emphasis added).

So, whilst AGNI does not explicitly consider DOLs in relation to under 16s, given that the court and practitioners were following the principles established in Cheshire West in DOLs applications for under 16s, if Cheshire West is no longer good law, it must be the case that AGNI should be followed for under 16s too.

It is anticipated that further case law will refine and clarify the position in respect to under 16s. The Nuffield Family Justice Observatory published an article on 11 August 2026 in which it considered what AGNI likely means for those under 16 (‘Deprivation of liberty and children and young people after AGNI’ by Dr Camilla Parker KC (Hon)), and on 12 August 2026 the first judgment considering the application of AGNI for an under 16 was published , and which is discussed later in this chapter (Re Mustafa (a child) [2026] EWHC 2159 (Fam)).

In order to understand what the case of AGNI now means for practitioners, it is first important to understand the previous test established under Cheshire West. In Cheshire West The Supreme Court (Lord Neuberger, Lady Hale (as she then was) and Lord Sumption) considered whether living arrangements for three mentally incapacitated adults amounted to a deprivation of their Article 5 rights, and therefore required authorisation under the deprivation of liberty safeguards. Lady Hale delivered the leading judgment, setting out “that human rights are for everyone, including the most disabled members of our community, and that those rights include the same right to liberty as has everyone else’ [1].

The Supreme Court, identified that the first and most fundamental question in considering the appeals was ‘whether the concept of physical liberty protected by Article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled?’ and noted the differing approach taken by the lower-level court. It was said to be clear from Strasbourg jurisprudence that a person may be deprived of his liberty without knowing it [35] and ‘the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty’ [35]. Lady Hale emphasised the universal character of human rights, and that they are to be guaranteed to everyone; people with disabilities, both physical and mental, have the same human rights as the rest of the human race [44]. Whilst their rights may need to limited or restricted due to their disabilities, the starting point is the same. Therefore, to be deprived of that physical liberty to go where you want must be the same for everyone.

Importantly, the purpose of any confinement, which may well be to a person’s benefit, is not relevant to whether or not there is a deprivation of their liberty [42]. The fact that their restricted living arrangements are comfortable and make their life enjoyable, make no difference. As Lady Hale stated and is oft-cited; “A gilded cage is still a cage” [46].

The second question that flowed was then ‘what is the essential character of a deprivation of liberty?’. The Supreme Court considered that the Strasbourg jurisprudence had established three components that needed to be considered when assessing the character of a deprivation of liberty:

  1. The objective component – which is confinement in a particular restricted place for a not negligible length of time.
  2. The subjective component – which is lack of valid consent
  3. The attribution of responsibility for the deprivation to the state.

These created the foundation of a test for assessing whether or not a DOLs order is required and were the key questions to consider in determining whether an application for a DOLs order needs to be made. The test was the same whether the application was being made under the Inherent Jurisdiction or the Court of Protection.

 

The new test under AGNI

In AGNI the Supreme Court set out a new ‘test’. For the purposes of this book, the background which led to the case reaching the Supreme Court is not relevant; the key point is that Lord Sales and Lady Simler (with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Rose agreed) determined that it was not possible to separate out the objective and the subjective elements of a deprivation of liberty, and that it is “not possible to consider the concept of absence of valid consent in isolation” [52]. Instead, the court concluded that a number of factors are relevant as to whether the objective element is made out. This means the new test is perhaps not as straightforward as that under Cheshire West, as the circumstances need to be considered in the round, rather than sequentially.

Now the starting point in assessing whether an individual is deprived of their liberty for the purpose of Article 5 is “the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question” [53(i)]. The Supreme Court considered that this new approach is actually in accordance with that which had been consistently applied by the European court, and that the previous approach had not been. (For reference, at [118]-[182] the Supreme Court carries out a review of the Strasbourg jurisprudence on article 5, and summarises that the European court has continued to apply a multi factorial test in determining when an individual is deprived of their liberty.)

An individual will only be considered to be deprived of their liberty if, as an additional subjective element, they have not validly consented to the confinement in question. “Valid consent is therefore a powerful factor in the assessment. It is an autonomous concept and not to be equated with the concepts of consent for the purpose of waiver of rights under the Convention or of legal capacity in domestic law. The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty” [53(ii)]

In AGNI the Supreme Court determined that it was entirely possible that an individual could lack capacity under domestic law, but could be conscious of their environment and understand their living circumstances, such that they are able to express their view about their circumstances and manifest an acceptance of them. Those individuals should have their opinion respected when an assessment is made of whether they are deprived of liberty under Article 5.

In AGNI, the court went on to clarify that whilst objective and subjective elements are often considered sequentially by the European court, there is an overlap, and so the objective element can take account of the context and circumstances of restrictive measures:

The approach of the European court means that the effect of restrictions on an individual, including their compliance and the lack of objection if they are capable of objecting or giving tacit agreement, is relevant in assessing the objective element of confinement. The relative normality of the placement is also a relevant factor in this assessment. Similarly, in situations that are far from the paradigm of confinement in a cell, the purpose for which a measure has been taken is a factor to be considered. [53(iv)]

It is of course not always easy to ascertain the feelings of a vulnerable individual, and it can be particularly challenging in borderline cases. Practitioners should take a practical and realistic approach and if there is serious doubt, it should be inferred that there is no valid consent to the arrangements. [53(v)].

The Supreme Court acknowledged that the ability and needs of individuals who will be affected by this decision will be highly varied, and that there is also a wide spectrum of care arrangements for people who lack capacity to decide on their residence and care. It went on to acknowledge the potential difficulty in identifying whether an individual agreed, objected or has a “positive attitude to the care arrangements” [55].

At [183] onwards, the Supreme Court considers why Cheshire West is not correct. It does not agree that an acid test was ever established by the European court, and so Cheshire West went beyond the Strasbourg jurisprudence in suggesting that it did.

In AGNI six areas of error in Cheshire West are identified (salient paragraphs have been included below)

  1. First, while the acid test formulated in Cheshire West refers to elements which are relevant as part of the multifactorial test set out in Engel and Guzzardi, application of the acid test is not sufficient by itself to show that there is a deprivation of liberty according to the Strasbourg jurisprudence. Put another way, it may well be that an individual cannot be subject to a deprivation of liberty under article 5 without the acid test being met, but this is not sufficient. To determine whether an individual is subject to such deprivation, a court must focus on their concrete situation and must take account of the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question.
  2. Cheshire West creates a bright-line test which is too crude in its application and which leads to an over-extensive interpretation of deprivation of liberty on the basis of a misplaced policy concern that safeguards in relation to vulnerable people have to be provided pursuant to article 5…
  3. Moreover, the judgments of the European court show that no single factor is determinative….
  4. Secondly, in our judgment the majority was wrong to conclude (para 50) that a “person’s compliance or lack of objection” is never legally relevant to the question of objective confinement. As the Strasbourg jurisprudence shows, confinement must be established as an objective fact and subjectively there must be an absence of valid consent: Storck, para 74. Moreover, the Strasbourg jurisprudence shows that these are not hermetically sealed concepts and there is inevitably some overlap. Thus, factors considered relevant in determining whether there is confinement are the “effects and manner of implementation” of the arrangements or restrictions in question (see para 118 above). The effect of restrictions on an individual is liable to differ according to whether they are content with or object to their living arrangements, and it is therefore relevant to consider the effect of the living arrangements on them: see, for example, W City Council v L [2015] EWCOP 20; (2015) 18 CCL Rep 350. If an individual objects to the arrangements, this is likely to result in conflict. There may be arguments, attempts to leave a particular place, expressions of a wish to leave, or conduct showing a wish to leave. The resulting stress for the individual in having their objections overruled may lead to suffering and result in the use of physical force or physical restraint. These features of the individual’s concrete situation are likely to be clear indicators that they are being confined, in the sense of suffering a deprivation of liberty. The necessary element of coercion is present because the individual is being compelled to live somewhere they do not want to live. Conversely, the absence of objections is likely to result in an absence of conflict which is equally capable of being relevant. If the arrangements for an individual’s care and treatment accord with their known wishes and feelings, and they are happy with them, it may be difficult to conclude that they are subject to a deprivation of liberty. There is unlikely to be any element of coercion present in that situation.
  5. Depending on the circumstances, mere compliance or acquiescence may carry little weight in determining whether there is confinement, particularly if it is accompanied by the administration of sedative medication which is capable of suppressing objections: see for example, HL paras 90–91 (paras 152–156 above). The administration of medication (including antipsychotic drugs or tranquilisers) is likely to be highly relevant in supporting the existence of the objective element of confinement because it suppresses the ability and freedom to express wishes and feelings. Its relevance is increased if the administration of it is accompanied by force. But again, the absence of medication may be a relevant factor pointing in the opposite direction.
  6. However, if an individual is able to, and does, express their wishes and preferences about their living arrangements, and is happy with them, it will ordinarily be difficult to see how they are being coerced.
  7. In borderline cases, the Strasbourg jurisprudence makes reference to the closeness of the situation to the paradigm case of deprivation of liberty, which is confinement in a prison cell…
  8. Thirdly, the European court has emphasised that article 5 is concerned with the physical liberty of the person and is not concerned with mere restrictions on the liberty of movement: para 118 above. Yet the acid test takes no account of the type of setting where an individual receives care and treatment and draws no distinction between the position of an individual in, say, a category A prison or a high security psychiatric hospital on the one hand, and a person supported to live as independently as possible in their own accommodation or in their family home. The effect of the restrictions on an individual living in their family home with their family, or living in their own home, with opportunities for leaving the place of residence for recreation, education or social contact, is likely to be very different from the effect on an individual held in a psychiatric hospital or a prison. The normality of the circumstances in which an individual is cared for is a relevant factor….
  9. Whether a placement amounts to a deprivation of liberty as opposed to involving only a restriction on the freedom of movement of an individual is plainly fact sensitive and a question of degree. The European court has repeatedly said that each case must be decided by reference to its own particular “range of factors”…
  10. Fourthly, the Strasbourg jurisprudence reflects the need for coercion or some externally imposed restrictions on an individual that prevent them from exercising their fundamental right to physical liberty. However, the acid test in Cheshire West takes no account of the innate limitations to which an individual may be subject by reason of their own physical or mental condition…
  11. Fifthly, the majority in Cheshire West were wrong to discount the potential relevance of the purpose for which measures of confinement were imposed
  12. Sixthly, the approach taken by the majority in Cheshire West equates lack of legal capacity with lack of valid consent (as part of the subjective element of the article 5 test); and this appears to have led them to treat the subjective element as not being in play in the three cases. This is wrong. Lack of valid consent as the subjective element of deprivation of liberty is an autonomous Strasbourg concept. It is separate from and not tied to the question of legal capacity in a domestic law context. Instead, it is more concerned with a person’s de facto understanding of their situation and how they experience it. The European court treats lack of valid consent as part of the definition of deprivation of liberty. To treat the lack of legal capacity as an inability to express valid consent confuses the analysis. A person may not have mental capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings.

In conclusion, whether an individual in care is subject to a deprivation of their liberty depends on the factual circumstances of their particular case.


AGNI in practice

Following the handing down of AGNI, Senior Judge Hilder provided a summary note designed to give immediate assistance to practitioners (in the Court of Protection).

  1. Whether a situation amounts to ‘deprivation of liberty’ is to be determined by application of ‘a multifactorial test’:
  • focus on the concrete situation
  • take into account ‘the whole range of factors’ in the particular case, including
    • type (of accommodation)
    • duration (of situation)
    • effect (on person concerned)
    • manner of implementation of measures in question
  • confinement must be established as an objective fact and subjectively there must be an absence of valid consent
    • coercion is ‘a necessary element’
    • ‘normality’ of circumstances is a relevant factor
    • absence of objection makes it ‘difficult to conclude’ that there is a deprivation of liberty

It is anticipated that fewer children and young people will require court authorisation for their care arrangements through the making of a DOLs order as a result of AGNI. However, the multi-factorial and case-by-case approach is essential in assessing those cases that do require the making of a DOLs. As AGNI is very recent, it is likely that we will see evolving case law as it is interpreted in practice.

AGNI has not changed the need to consider the three key questions in assessing whether a deprivation of liberty arises: 1) the objective component- is there a confinement?, 2) the subjective component- is there valid consent? 3) is the state responsible for the confinement?

What has changed is the way that the questions should now be considered. AGNI requires a multifactorial assessment of the individual’s care arrangements.

 

 

Consent

For under 16s

Child’s consent

Under Cheshire West, it was the case that a child under 16 could only consent to a deprivation of liberty if they were assessed as being Gillick competent.


A note on Gillick competence

A child under 16 is assumed not to have capacity until proven otherwise. Gillick Competence is the test for assessing legal capacity in children under the age of 16 years, and was established in Gillick v West Norfolk and Wisbech Area Health Authority (1985) 2 A11 ER 402. Children who are Gillick competent are deemed to be capable of giving valid consent to medical treatment.

Practitioners should also consider whether a child is Gillick Competent to consent to other decisions such as a deprivation of liberty. The factors to be considered when assessing whether a child is Gillick competent include:

  • child’s age, maturity (physical and mental) and intellect
  • do they understand the problem or issue, and what it involves?
  • do they understand the risks, implications and any consequences, that may arise from their decision?
  • do they understand the advantages and disadvantages of the issue they face?
  • do they understand any advice or information they have been given?
  • do they understand any alternative options (if available)?
  • can they articulate a rationale around their reasoning and decision making?

However, in Mustafa, Mr Recorder Adrian Jack determined that, in light of AGNI, Gillick competence was no longer necessary to establish consent to restrictions by an under 16.

Mr Recorder Jack was asked to consider whether the arrangements for a 15-year-old boy with Prader Willi syndrome, developmental delay and additional learning needs, residing in a 52-week residential placement, required authorisation for restrictions by way of a DOLs order. The local authority contended that in line with AGNI and in applying the multi-factorial test, a DOLs order was no longer necessary. Mustafa repeatedly and consistently stated that he likes living at the school. Importantly, he is not merely acquiescent and does communicate dissatisfaction when he does not agree with something. The local authority further contended that the arrangements represent ordinary and necessary features of the specialist care package that Mustafa requires. He did also require the use of physical restraint to keep him and others safe on occasion.

The guardian’s view was that Mustafa’s apparent consent was compliance rather than valid consent and raised concern that his apparent consent may be insecure, not of an enduring nature, and so likely to be revised and retracted.

The court considered whether consent can only be given by a Gillick competent child. Mr Recorder Jack concluded that the overruling of Cheshire West meant that “A child who is not Gillick competent may nonetheless have sufficient understanding for their views to be relevant as to whether they consent to aspects of deprivation of their liberty.”[39].

Ultimately, the court determined that, in considering all factors relevant as to whether there is a deprivation of liberty, there was no such deprivation. Mustafa was generally happy and when the school uses physical restraint, it either has Mustafa’s consent or it is entitled to use restraint under its common law powers. Either way, there is no deprivation of liberty such as to give rise to a violation of Article 5(1). An extension of the DOLs order was therefore neither necessary nor proportionate and was refused.

It does continue to be the case that whether or not the child would withdraw their consent to restrictions is relevant to the need for a deprivation of liberty.

If a child evidences consent and would not withdraw that consent, then the arrangements will not require court authorisation. However, it is anticipated this will continue to be unusual in practice (as would have been the case under Cheshire West).


Parental consent

It was also the case under Cheshire West that a parent could consent to a deprivation of liberty for under 16s, if

  • the child is not Gillick
  • there are no concerns about the parent(s) own capacity to give valid consent.

In circumstances where a parent can give valid consent to the restrictions, the arrangements would be regulated under s20 Children Act 1989.

Please note that a corporate parent cannot give consent, regardless of whether it holds an ICO or a final care order for a child or young person (para 18 D (A Child) [2020] 2 All ER 399).


Case law on parental consent

A number of cases (set out below) have considered parental consent to a DOLs for under 16s. These cases were decided pre-AGNI and so the issue of whether the subject child had evidenced consent, rather than Gillick competence was not considered. Clearly these cases will need to be read in light of AGNI but at this time, it is not thought that AGNI will affect whether parents can consent to a DOLs for an under 16 if the child cannot or does not evidence consent themselves.

In QX (Parental Consent for Deprivation of liberty: Children under 16) [2025] EWHC 745 (Fam), HHJ Burrows sitting as a High Court Judge, considered the circumstances in which a person with parental responsibility can consent to DOLs. The local authority had issued applications for a care order and DOLs for QX, who was autistic with severe learning disabilities. The local authority subsequently withdrew both its applications on the basis of parental consent subsequently being given.

The court held:

  1. The authorities are clear that a person with parental responsibility does not exercise substituted consent, but that the right to consent to a deprivation of liberty falls within the scope of exercising parental responsibility. Under the age of 16, children are still of an age when it would be normal for decisions to be made by a parent, even if that decision conflicted with the child’s wishes.
  2. The existing authority on the exercise of parental to consent to a deprivation of liberty makes it clear that “provided the exercise of parental responsibility is for the interest of the child, then it is within the zone of parental responsibility; if it is not, then it is without that zone.” [58].
  • QX’s parents knew best and were freely able to act in his best interests. As such, neither a care order nor DOLs were necessary.

HHJ Burrows noted that as a result of his decision, an identical case to QX would not now result in the need for the local authority to issue proceedings. This would leave parents and local authorities to embark on the challenge of identifying appropriate placements and arrangements for children with complex needs without judicial involvement or scrutiny. In particular, this would leave parents to make “an agonising decision not only whether to part with their child, but also to hand that child over into an uncertain regime of intense restrictions, often with the need to change placements on a regular basis.”[67]. As such, HHJ Burrows advises local authorities to err on the side of caution and issue proceedings if there is a possibility that parents may become overwhelmed by the decision-making process or change their minds for various reasons, and thus withdraw their consent.

In East Riding of Yorkshire Council v The Mother & Ors [2026] EWHC 181 (Fam) and Medway Council v The Father & Anor [2026] EWHC 236 (Fam) Henke J considered the scope of DOLs restrictions for children under the age of 16.

In the East Riding case (re L), L was a 12 year old who had autism and significant sensory needs and was accommodated under s20. The local authority sought a declaration that the regime she was under did not fall under the DOLs because she lacked capacity and so was not Gillick competent, and her parents consented. This was opposed by the children’s guardian.

The court held:

  1. L was confined in a children’s home
  2.      Her parents can consent to a DOLs on her behalf but there are limits to that consent applying Re D [2017] EWCA Civ 1695) ([55])
  • The court considered that the decisions being taken by the parents were in L’s best interest and would come under the zone of parental responsibility to ensure her needs are met
  1. The use of physical restraint went beyond just care and treatment and was also used to prevent her from leaving which is an objective component
  2. The combination of the regulation of children’s homes and the consent of the parents provided effective safeguards for L

In Medway Council (Re O), O was a 15 year old who was profoundly disabled and was provided support under s17 CA 1989. She had global developmental delay and a number of physical limitations. The package of care included continuous supervision and care, restraint during travel and confinement in locked premises. The father and children’s guardian argued that a DOLs was not necessary as O was not Gillick competent and the father’s consent was valid.

The court held:

  1. Whilst the age of the child is relevant the unique characteristics of the child are key in determining the zone of parental responsibility. Where the child is under 16 and they lack Gillick competence the zone of parental responsibility remains ‘wide’
  2. O lacked Gillick competence and her father was making decisions in her best welfare interests
  • Personal care in the family home does not amount to a confinement but the 1:1 supervision in the home or community is capable of being a confinement
  1. Authorising those arrangements at school or in respect of care is an appropriate exercise of the father’s parental responsibility


If 16 or 17:

  1. Gives their own consent:
  • Valid consent (‘ taking into account the guidance under AGNI as to what consent may look like.
  1. Parent(s) consent:
  • A parent (including the local authority as a corporate parent) cannot consent for a child or young person who is aged 16 or over

A summary of the law in relation to the distinction between the authority of parental consent depending on a child’s age is set out by Keehan J at [38]-[39] of Re D (A Child) (Deprivation of liberty) [2015] EWHC 922 (Fam)).

  1. I have been referred to the provisions of s131 MHA 1983 which states:

131 Informal admission of patients.

(1) Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or [registered, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or [registered establishment] in pursuance of such arrangements after he has ceased to be so liable to be detained.

[ (2) Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above.

(3) If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.

(4) If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.

(5) In this section—

(a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and

(b) “parental responsibility” has the same meaning as in the Children Act 1989.]

  1. Further s8 FLRA 1969 provides that:

s8(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.

  1. These provisions are just two examples of where Parliament has chosen, in a number of areas, to draw a distinction between a child and a young person who has yet to achieve his/her majority but who has attained the age of 16 or 17. Thus the legal authority of a parent to consent to the detention or treatment of a 16 or 17 year old is severely curtailed, if not removed.


Attribution of responsibility to the state

The question to be asked here is whether the local authority is providing the restriction and the deprivation. If a DOLs application is being contemplated, it is highly likely that the local authority is providing the restrictions on the young person or child. This component will generally always be satisfied in family court or COP proceedings.

This element has not been changed by AGNI.


What to do with current DOLs order following AGNI

There will of course be much worry about what to do with existing DOLs order both in relation to those orders made under the Inherent Jurisdiction and in the Court of Protection.

The guidance that has been provided suggests the following:

  • Existing DOLs authorisations should be reviewed where, following AGNI, the person may no longer be considered deprived of their liberty.
  • Authorisations can remain in place pending review and this will not, of itself, amount to an unlawful deprivation of liberty.
  • Local authorities should develop and document a clear approach to managing existing caseloads, referrals and authorisations following the change in the law.
  • Decision-making should be carefully recorded, particularly where authorisations are allowed to lapse because they no longer fall within the scope of DOLs.
  • Restrictions can be reduced without a fresh authorisation or review where an individual no longer requires the same level of restriction under an existing DOLs authorisation.

In this transitional phase caution is advised and where there is doubt an application to renew the DOLs should be made. The application of AGNI will become clearer as more cases are determined.


Summary

AGNI has dramatically changed the legal landscape when considering the need for a deprivation of liberty order for a child or young person. As a result, it is anticipated that fewer children and young people will need to be subject to DOLs orders. Further clarification is expected through future rulings, particular in relation to under 16s. A multi factorial approach is required to assessing whether court authorisation is required. A child under 16 no longer needs to be assessed as being Gillick competent to consent to a deprivation of liberty order; they need to be able to evidence a sufficient understanding of their arrangements and be able to communicate or indicate how they feel about those arrangements.

 

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