Re B (A Child: Complex Needs: Deprivation of Liberty) [2026] EWHC 2789 (Fam) represents a clear and detailed consideration and application of AGNI to those under 16. It represents the first in what Henke J (the lead judge for the National DoL list) has said will be the number of decisions relating to children and young people whose cases she heard in that list. The specific child in question, B, was 9, with diagnoses of Autism Spectrum Disorder and Global Developmental Delay and presented with complex behavioural, emotional and developmental needs. She had a detailed Behaviour Support Plan and an Education, Health and Care Plan (“EHCP”). She attended a school providing specialist provision for children with additional learning needs. She also received regular respite care from a specialist provider whose staff are trained in trauma-informed care and autism awareness. The parties agreed that her circumstances did not give rise to a deprivation of liberty; they also broadly, but with one significant exception, agreed as to the law. That exception was whether, if B was confined, the local authority (as holder of a care holder relating to her) could consent to that confinement so as to take her circumstances out of Article 5 ECHR.
Henke J reminded herself that AGNI applied to those aged 16 and over; the question for her was how it applied to those under 16. In a paragraph echoing that of Mr Recorder Jack in Re Mustafa [2026] EWHC 2159 (Fam), she held (at paragraph 24) that:
Following AGNI, it is clear that “valid consent” for determining whether there is a deprivation of liberty is an autonomous concept, distinct from legal capacity under domestic law and consent to waive Convention rights. A person who lacks capacity to decide their living and care arrangements may nevertheless understand and accept them sufficiently to prevent those arrangements amounting to a deprivation of liberty. I consider that this applies equally to children. The question is not whether the child has legal capacity or is Gillick competent, but whether they are aware of their environment, have a basic understanding of their circumstances and can express a view. The weight given to that view will depend on the child’s age, maturity and understanding.
She then continued:
25. For children aged 16 or 17, it has been settled by Supreme Court authority that parents cannot provide valid consent to the confinement of the child by the state — Re D [2019] UKSC 42, 1 WLR 5403 applied. There is, however, a line of authority that parents may provide valid consent to the confinement by the State of children under 16 years old if they lack capacity to consent themselves, as such a decision may fall within the zone of parental responsibility. Recent examples are found in East Riding of Yorkshire Council v The Mother, The Father and L [2026] EWHC 181 (Fam) and Medway Council v The Father and O [2026] EWHC 236 (Fam). The issue of whether those authorities survive AGNI does not arise in this case, as B’s parents play no part in her life.
In this case, the local authority holds parental responsibility for B under a final care order — s 33 CA 1989 applied. The issue is whether it is open to a local authority to provide valid consent within the meaning of Storck (b). In J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478, paras 49–50, the Court of Appeal held that a local authority cannot validly consent to the confinement of a child in its care. Mr Krumins submitted that Re J was substantially based on Cheshire West and, following AGNI, should no longer bind this court. He invited me instead to follow the reasoning of Lieven J at first instance: under s 33 of the Children Act 1989, a local authority exercises parental responsibility for a child subject to an interim or final care order and should therefore be able to consent as a parent could for a child under 16. Mr Krumins reminded me that there were safeguards such as child-in-care reviews and independent reviewing officers. He argued that the local authority’s positive obligations under Articles 2 and 3 could justify a deprivation of liberty where it was necessary and proportionate to detain a person to protect them from the harms covered by Articles 2 and 3.
Henke J did not agree and after a close reading of J held that, notwithstanding its reliance upon Cheshire West, its core reasoning remained good, and that (at paragraph 31): “[t]o permit the State, in the form of the local authority, to consent to the confinement by the State of an individual would drive a coach and horses through the purpose of Article 5.” She also had little truck with the arguments based upon Articles 2 and 3 ECHR:
32. As to Mr Krumins’ arguments which rely on the positive obligations of the local authority, the State, under Articles 2 and 3, there appear to me to be two different arguments put forward. The first is that, if the State is satisfied that it needs to confine someone to meet its positive obligations under those Articles, then it can provide valid consent to that confinement. However, that begs the question: can the State provide valid consent to the confinement by the State of an individual? The answer is “no”, for the reasons already given. The second argument is “justificatory”: the State accepts that there is a deprivation of liberty under Article 5, but argues that it is justified by the State having to comply with its positive obligations under Articles 2 and 3. The problem with that argument is that “Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds” — paragraph 88 of Khlaifa v Italy [GC], no. 16483/12, 15 December 2016 applied. Articles 2, 3 and 5 may intersect, but they cannot be balanced against each other. They are not qualified rights. The only permissible grounds upon which an individual can be deprived of their liberty are set out within Article 5 itself.
She also then considered the decision of Sir James Munby in Re A-F, where restrictive care arrangements were considered in the context of the child’s age. She held that that analysis was framed by Cheshire West and the now-overruled reasoning of Lord Kerr (applying a comparator approach based upon the child’s age). Rather:
34. […] I agree with Mr Jones KC that whether or not a child is being deprived of their liberty must now be assessed in accordance with AGNI. I consider that the task following AGNI is to look at the concrete situation of the individual child. The relative normality of the child’s circumstances and the purpose of the restrictions imposed are both relevant to the required multifactorial assessment. The rights granted by the ECHR are universal and apply to all equally. As the Supreme Court stated at paragraph 198:
198. This does not result in “liberty” in article 5 meaning something less for those who, because of their impairments, are unable to enjoy that liberty. Nor does it mean that their human rights are in any way different from, or less than, those of an able-bodied person of sound mind. Liberty means the same thing for everyone. As explained in Engel, it means physical liberty, including the freedom to go where one pleases. For those who are unable to do this because they are unconscious, in a minimally conscious state, or so profoundly disabled that they cannot conceptualise leaving let alone physically achieve this, they are not being prevented by a third party from doing something and are not being deprived of anything. The state may in some circumstances be subject to positive obligations (as the Secretary of State accepts) to take reasonable steps to prevent a deprivation of liberty, by, for example, providing a wheelchair or other aid to enable the individual to leave. But that is a wholly different point.
Helpfully, Henke J then set out a set of ‘legal principles’ at paragraph 36 drawn from the authorities she had reviewed:
(i) The starting point for any analysis must be the child’s specific or “concrete” situation. The analysis must be multifactorial and should include consideration of the child’s lived experience.
(ii) When considering the objective component and whether a child is confined, there must be a focus upon the situation of the individual child, the nature and duration of the restrictive care arrangements in place, the purpose of the restrictions, their effects upon the child concerned, and the manner in which they are implemented by the child’s carers. Any restrictions in place should be considered both individually and cumulatively when assessing their impact upon the child concerned.
(iii) An individual, including a child, can be deprived of their liberty even if living in the community or their own home. However, if an individual is living in their own home, in accordance with their wishes and feelings, it makes it less likely that the individual is being subject to a deprivation of liberty within the meaning of Article 5. Put another way, the restrictions imposed need to be more severe or extensive to amount to such a deprivation, such as, for example, a combination of restraint, medication, and seclusion.
(iv) The age of the child and their relative normality are relevant as part of a multi-factorial approach rather than direct comparators. Each case should be considered its own facts.
(v) The purpose of the restrictions is relevant but not determinative.
(vi) When considering the subjective component, consent in this context is distinct from legal capacity and the concept of Gillick competence. A child who does not have legal capacity may nevertheless understand their living arrangements and may be able to express a meaningful view about them. The weight given to that view will vary with the child’s age, maturity and awareness of their situation. Absence of objection may, in some cases, be evident from the absence of conflict, but in others compliance and acquiescence will not be enough. Clear objection by an older child, including repeated attempts to leave, may strongly indicate a deprivation of liberty. Where there is serious doubt, no inference of valid consent should be drawn.
(vi) The local authority cannot consent to the deprivation of liberty of a child in its care whether under an interim or final care order.
(vii)The objective and subjective elements overlap and should not be compartmentalised. Compliance, the absence of objection, the relative normality of the placement, and the protective purpose of the measures may all bear upon the assessment.
(ix) Where, after assessment, the deprivation of liberty is obvious, a local authority will need to apply under s 100 CA 1989 for permission to invoke the inherent jurisdiction and, if permission is granted, seek authorisation of that deprivation of liberty. Where the position is finely balanced and the local authority considers that the restrictions may amount to a deprivation of liberty, the local authority should bring the case before the court for independent scrutiny. In such cases, the local authority should apply for permission under s 100 CA 1989 to invoke the inherent jurisdiction to seek the court’s authorisation to deprive that child of their liberty.
On the facts of the case before her, and whilst the restrictions on B went beyond those expected in relation to a 9 year old:
45. I stand back and consider B’s concrete situation and the nature, cumulative effect and purpose of the restrictions. Having done so, I agree with the local authority and B’s Children’s Guardian that they do not amount to a deprivation of liberty. Storck (a) and (b) overlap in this case. There is no confinement. B is happy and content with her lived experience. Article 5 is not engaged; no court authorisation is required and the proceedings are dismissed.
Comment
The clear statement by Henke J that the logic of J remains valid notwithstanding the demise of Cheshire West is very helpful and, with respect, clearly correct. It is perhaps of some interest to note that, although not directly in issue before her, she appeared to proceed on the basis that it was obvious that Re D was still good law as regards the ability of parents to consent to the confinement of children aged 16 and over. Whereas J’s rationale can be seen to stem directly from Article 5 ECHR, it is not so obvious that Re D does, as opposed to being filtered through a Cheshire West prism. I do therefore anticipate that there may be an argument advanced in due course by the (non-local authority) parent of 16-17 year old that they should be seen as able to consent to the confinement of that child, and those who wish to maintain the position established in Re D will need to be prepared to meet that argument.
The guidance given by Henke J as to the approach to be taken to local authorities with responsibility for children in their care where deprivation of liberty may be in play is also important. One would hope that a similar approach will also be taken in relation to the operation of the provisions to be introduced into s.25 Children Act 1989 by s.13 Children’s Wellbeing and Schools Act 2026, requiring an application for authorisation to be made where the proposed restrictions in the relevant accommodation may amount to a deprivation of liberty.
