Three recent High Court judgments have considered how “AGNI” applies to requests for a deprivation of liberty orders regarding children living in a family, foster or care setting.
“AGNI” refers to the 2nd June judgment, A Reference by the Attorney General for Northern Ireland [2026], in which the UK Supreme Court unanimously overruled the landmark 2014 decision in P v Cheshire West and Chester Council.
The AGNI judgment set a new precedent for the application of deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR).
Under the Cheshire West precedent if someone lacked the mental capacity to consent to their care and living arrangements, is under continuous supervision and control, and is not free to leave, they were legally deprived of their liberty, therefore triggering safeguards, such as requiring an independent assessor to regularly inspect care homes, supported living arrangements, and locked units to ensure any placement is safe, justified, and in the person’s best interests.
The Supreme Court approved a revision to the Northern Irish Deprivation of Liberty Safeguards Code of Practice so that anyone aged 16 or over who lacks capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their wishes and feelings.
Deprivation of liberty is now assessed through a flexible, multi-factorial evaluation of the individual’s overall situation. It also established that individuals lacking mental capacity can still “consent” to their care if they have basic awareness or appear content.
Ms Justice Henke at the family division of the High Court has made three recent judgments applying the AGNI judgment and arguments to children under 16, despite the fact AGNI concerned adults in the context of the Mental Capacity Act 2005.
Judge Henke’s judgments considered how AGNI applies to a child living in a family setting, including a kinship foster placement; how AGNI applies where a child is subject to a care order, and the meaning of consent; and if the court determines that there is no deprivation of liberty, the lawfulness of the local authority’s use of unregistered respite provision.
In AGNI, the Supreme Court expressly considered the possibility of a deprivation of liberty in a person’s own home or in the community. The court said: “We do not assume that because an individual is cared for in a community setting, their care arrangements are necessarily less restrictive than in a psychiatric hospital, nor that an individual subject to restrictive care arrangements would inevitably object to them or indicate that they were not happy to live in the particular setting.”
Judge Henke was clear that Storck v Germany (2005) continues to apply. These are the first two legal requirements used to determine whether a person is being legally deprived of their liberty. These components establish whether an individual’s situation legally amounts to a restriction of freedom or a true detention.
In AGNI, the Supreme Court reconsidered what amounts to a deprivation of liberty for someone 16 or over who lack capacity to decide where they should live and what care they should receive, and whose living arrangements might amount to confinement.
Henke’s judgments make it clear that deprivation of liberty has three elements:
- The objective element of a person’s confinement to a certain limited place for a not negligible length of time (known as the objective element).
- Whether the person consented to the confinement in question (known as the subjective element).
- The confinement must be imputable to the state.
In separate judgments, Henke dismissed two applications by local authorities for deprivation of liberty orders regarding young children with severe needs in either foster care or kinship foster settings, whose homes must be made secure for their safety.
In both cases, Re B (A Child: Complex needs: Deprivation of Liberty) and (D) (A child with complex needs: Deprivation of Liberty), the judge found the children were happy or content in their settings, despite the presence of locked doors and windows, the use of occasional restraints and the need for constant supervision.
A further case regarding a 14-year-old boy, C, who, until December 2025, lived at home with his parents and siblings, but who was then placed in a community setting. At the time of his hearing C’s initial community placement had broken down. He had been admitted in crisis to hospital and then discharged to a bespoke placement which was not registered with Ofsted. An application for an order of the court authorising the deprivation of C’s liberty was initially made by an NHS Trust in late January 2026. On 2nd February 2026, the local authority made a separate application seeking permission under S100 CA 1989 to invoke the court’s inherent jurisdiction and court authorisation to continue to deprive C of his liberty.
C was subsequently placed in a non-Ofsted registered placement. C’s parents told the court they consider his current accommodation by the local authority is in C’s best interests.
In her judgment on the case, Re C (A child with complex needs including a severe learning disability: deprivation of liberty), Henke remarked: “The local authority has on a previous occasion been granted permission to invoke the inherent jurisdiction under S100 CA 1989 to seek court authorisation for the deprivation of C’s liberty latterly in an unregistered but bespoke placement. The application before me is not for court permission to accommodate C in an unregistered placement; rather, it is an application for court authorisation of C’s deprivation of liberty at that placement.”
She emphasised that: “The power of a local authority to place a child in an unregistered children’s home is distinct and separate from the power to authorise a deprivation of liberty. The authorisation sought by the applicant is to deprive C of his liberty at that placement.”
Henke found C’s situation was “far removed from the paradigm case of deprivation of liberty, namely detention” and that “C’s parents agree to the care and support package that C is receiving at his current placement…in full knowledge of the restrictive measures and the level of supervision their son receives.”
She concluded that “in the circumstances of this case C cannot be said to be being deprived of his liberty” and so dismissed the local authority’s application for the court’s authorisation to deprive him of his liberty.
