Just too late for the September 2026 Mental Capacity Report, HHJ Burrows has handed down the most comprehensive first instance ‘run’ at AGNI to date, AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2), concerning (as he identified at paragraph 1):
a young man I shall call AR. He is diagnosed as suffering from moderate to severe learning disability and autistic spectrum disorder. He is a man of 25 years who lived for most of his life with his parents. However, since May 2025, AR has lived in a placement, initially by way of respite care, but now on a more permanent footing. Although there has been disagreement between the LA and AR’s parents in this case, it seems agreed that where he presently lives meets his needs, and I am not being asked to order his return home.
HHJ Burrows was at pains to note at paragraph 14 that:
We are in the early days following the Supreme Court’s recent judgment in 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 (which I will refer to as the Northern Ireland case, or the NI case), as Ms Flanagan stated on a number of occasions, noting that we are awaiting “guidance” from the Courts. I am not sure there can be much guidance as to the use of a test that is fact and therefore case specific and multifactorial. It is certainly not my aim (or job) to give guidance. What I ought to do, however, is to explain how I think the NI case impacts on AR.
It might be thought that HHJ Burrows was quite well placed to give such an explanation, having (in a previous life) been junior Counsel for the Official Solicitor in Cheshire West, and hence a very hardened veteran of what sometimes has felt like the deprivation of liberty wars.
Having set the scene by reference by reference to the basics of the jurisdiction, HHJ Burrows set out the entirety of Article 5 ECHR
19. […] just to demonstrate its scope. That is because if, as the Supreme Court says in the NI case, the paradigm example of deprivation of liberty is the prisoner in his cell, the Article’s scope strays some distance from that paradigm, particularly in relation to children and those persons of “unsound mind”. The NI case makes it clear that it is only those who are closer to that paradigm that should properly be found to be deprived of their liberty.
As he noted:
20. It is, however, also important to note that the purpose of Article 5 is essentially protective. It ensures procedural protection for those who are vulnerable to arbitrary detention. This may be due to the commission, or the suspicion of the commission of a criminal offence. Or maybe unlawful entry into the country. Or carrying contagious diseases. Or being a vagrant. It also includes dysregulated children and young people, a cohort presently of a significant size. It also includes those whose unsoundness of mind ranges from the elderly person in a state of advanced dementia, or a person with a severe brain injury, to the floridly psychotic, the suicidally depressed, homicidal psychopaths and the learning disabled or autistic young person.
21. Those Article 5 is designed to protect are various. Hence, although the idea of a paradigm example of deprivation of liberty may appear helpful, it may also lead to highly restrictive regimes in a community setting appearing not to involve deprivation of liberty, because there are no bars on the windows, no 10-metre-high fence around the placement, and the terminology used may reflect a homely setting rather than a penal one.
HHJ Burrows then set out an elegant precis[1] of how the Supreme Court in AGNI reached its conclusion, and an admirably concise summary of what he considered to be the relevant principles, namely:
- Non-secure environments matter. Living in a family home, foster placement, supported living or ordinary home is highly relevant and may point away from deprivation of liberty.
- Purpose matters. Protective and therapeutic restrictions are relevant and distinguishable from punitive confinement
- Relative normality matters. The more the placement and care plan resembles ordinary life for a person in P’s circumstances, the less likely it is to constitute a deprivation of liberty.
- Protective motivation matters. Although not decisive, restrictions imposed for care and safety rather than punishment weigh against a finding of deprivation of liberty.
- Objection and consent matter profoundly. A person may lack decision-specific MCA capacity yet still possess sufficient factual understanding to express valid consent for Article 5 purposes. Genuine contentment, acceptance or tacit consent may negate the subjective element of deprivation of liberty. Mere acquiescence, however, may not suffice.
What HHJ Burrows does not say, but would have been very aware, is that each of these principles represents a very different take on deprivation of liberty than in Cheshire West.[2]
Applying this to the facts of AR’s case, HHJ Burrows held as follows (reminding ourselves that this is a fact-specific exercise, rather than a ‘cookie cutter’ to be applied):
64. Counsel submit this is a finely balanced case. I am not sure that is right. Looking at the matter globally and adopting the evaluative approach mandated by the NI case, I conclude that AR’s circumstances do not amount to objective confinement for the purposes of Article 5.
65. In my judgment, and applying the NI case, the following matters are decisive.
(a) AR suffers from a condition that will always require a significant level of supervision. There is a need in his case to ensure a good level of routine and predictability so as to ensure his relative happiness.
(b) AR will always require restrictions on his movement. He will never be “free to leave” wherever he safely resides, and significant control has to be placed on his movements in and out of his residence.
(c) Management of his behaviour will always require a high level of supervision and control, including when necessary, restraint.
(d) Although he is not at his family home, he is at a place which he is able to treat as his own and to personalise his environment. He is able to make friends, and engage in activities in and out of the placement.
(e) These restrictions are in place for his own good, and are intended to ensure the best outcome for him.
(f) Although his residence at the placement involves restrictions, they are far away from the paradigm of the prisoner in his cell, or, for that matter the mental patient in his secure unit.
(g) These arrangements are relatively normal.
66. One issue I raised in argument was the extent to which his parents’ issue with his placement was relevant to the issue of Article 5. The importance of this issue was somewhat diminished by the parents’ acceptance that AR should remain where he is. However, there is still a dispute over contact. This raises two issues. First, what if AR’s parents had submitted that he ought to come home immediately? The consensus at the bar was that objection from anyone other than P is not relevant to whether P was deprived of his liberty. I accept that, although clearly such an objection can have knock-on effects into the care plan (restrictions on contact, for instance) that can increase the intensity of the restrictions imposed on P. Now that a very wide range of matters need to be taken into account in determining whether Article 5 applies, it is important to recognise that contact is now more significant as a factor when determining whether P is deprived of his liberty.
67. That leads to the second point. There will be restrictions on contact with AR’s parents, at least initially. These restrictions are relevant to the issue of deprivation of liberty. However, in the context of this case, it seems to me that contact is able to take place, and the availability of contact may increase in line with the order I make. There may be situations where restrictions on contact with friends and family may be such as to change the character of the placement away from a home and closer to a place of detention. This is, in my judgment, not one of them.
68. The decisive features in this case are the protective purpose of the restrictions, the relative normality of the placement, the extent of community participation and the absence of institutional or custodial characteristics. AR is not deprived of his liberty. Article 5 is not engaged.
As he recognised, this conclusion meant that HHJ Burrows did not need to go on to consider the ‘subjective limb.’ However, he continued at paragraph 69: “given the novelty of the issue and the care with which it was argued before me, I consider it appropriate to express a view.” Although any such view was clearly obiter (i.e. did not form any part of the reasoning underpinning the decision), I set out his observations here in full as they provide an indication of how it could be possible to interrogate this issue:
70. As the Supreme Court said at [151] of the NI case (emphasis added):
The discussion above assists us to analyse the series of Strasbourg cases which were particularly relied upon by the parties to this reference. The principle which emerges from the authorities is as follows. An individual without legal capacity, but who is conscious of their environment and has a basic understanding of their living circumstances in a secure care environment, so that they can in some suitable way express their view about their situation, who manifests their acceptance of that situation, should have their opinion respected when an assessment is made whether they are suffering a deprivation of liberty under article 5. Their subjective attitude, as so expressed, carries significant, indeed usually decisive weight, according to the criteria set out in Storck. Conversely, if such a person manifests a view that they do not accept that situation, that opinion should also be respected and will usually lead to the conclusion (if the objective circumstances indicate that they are detained) that they are subject to a deprivation of liberty.
71. The Supreme Court also made the following comments at [160] when discussing Shtukaturov (emphasis added):
The [ECtHR] held that there had been a deprivation of liberty under article 5(1). The objective element of the test for deprivation of liberty was clearly made out (the applicant was confined for several months, not free to leave and his contacts with the outside world were seriously restricted). As regards the subjective element, the respondent government maintained that the applicant’s detention had been voluntary, because his legal guardian had consented to it, whereas the applicant “referred to his own perception of the situation” (para 107). The court recognised that the applicant lacked de jure capacity to decide for himself, but found that he was de facto able to understand his situation, as his own behaviour showed, and judged by reference to that he had not validly consented to his confinement and there had been a deprivation of liberty: paras 108–109.
72. This approach carries with it some forensic difficulties. Is evidence required as to agreement and disagreement, and can it be challenged? What about the situation where P’s position changes from time to time? Who decides? Presumably it’s the Court? Nonetheless, it seems to me that a Court, when approaching this expanded definition of the subjective element under the MCA must always err on the side of caution, and provide Article 5 rights if there is any serious doubt that P consents (and is lacking in MCA capacity, of course).
73. This appears to be the view of the Supreme Court in NI. Although the judgment is extremely long, and establishing any succinct guidance is very difficult, there are some passages on this subject that can assist. In the discussion of consent in the ECHR cases (Nielsen, Stanev, HM v Switzerland, DD v Lithuaniaand HL v UK) paragraph [191] of the NI case is helpful in this regard:
We recognise that there may be considerable evidential difficulties in ascertaining whether a person who is severely autistic or who has other profound cognitive disabilities is content with and not objecting to their living arrangements. Inevitably there will be a wide spectrum of cases, with cases at one end where eliciting evidence of positive expressions of wishes and feelings about the care placement will be impossible, and at the other end, cases (like MIG’s and MEG’s in Cheshire West, and the applicant’s attitude to the Lielberze home in Mihailovs) where a tacit positive indication of wishes and feelings showing contentment with the arrangements can be ascertained. In the latter cases, such evidence is relevant and should not be excluded from consideration. The cases between the two ends of the spectrum will create varying degrees of difficulty and will require anxious consideration to determine what effect the applicable restrictions are having and what attitude the affected individual has to them. As we have said, it may be that if nothing more than mere compliance or acquiescence is a feature of the case, that is not enough. If the individual is capable of expressing a view and there is serious doubt about their attitude, no inference should be drawn.
74. Dr Radcliffe’s evidence demonstrates that AR has a moderate to severe learning disability and autistic spectrum disorder which result in profound difficulties in communication, adaptive functioning and independent decision-making. Dr Radcliffe concludes that AR requires constant access to support across all areas of daily living and is presently unable to live independently. Whilst AR is capable of expressing simple likes, dislikes and preferences through his own communication methods, there is no evidence that he possesses a developed understanding of the legal, practical or social arrangements underpinning his placement. Rather, Dr Radcliffe’s evidence suggests that AR’s experience of the placement is mediated through immediate and concrete matters, such as whether he feels safe, whether routines are predictable, and whether those around him are responsive to his needs.
75. That does not, however, mean that his wishes and feelings are unreal or unreliable. On the contrary, Dr Radcliffe places considerable emphasis upon the importance of understanding and responding to AR’s emotional experience. He considers that AR is capable of demonstrating preferences, expressing enjoyment, signalling distress and communicating attachment to important people and places. The evidence therefore supports the proposition that AR’s wishes and feelings are genuine and should be accorded significant respect when assessing his welfare. In particular, Dr Radcliffe identifies the importance of ensuring that AR feels safe, secure and emotionally contained within his environment and notes the positive impact which the stability of the current placement appears to have had upon his wellbeing.
76. The more difficult question is whether those abilities amount to the form of understanding required for valid consent as contemplated in the NI case. In my judgment, Dr Radcliffe’s evidence does not clearly establish that they do. Whilst AR is capable of expressing preferences and emotional responses, there is little evidence that he understands the nature of the choice between living at the placement and living elsewhere, the restrictions which operate within the placement, or that he has sufficient appreciation of those arrangements to make an autonomous decision either accepting or rejecting them. His ability to communicate contentment or dissatisfaction is real, but that is not necessarily the same as understanding the nature of the arrangements to which that contentment relates.
77. Accordingly, whilst Dr Radcliffe’s evidence supports the conclusion that considerable weight should be given to AR’s wishes and feelings, it provides only limited support for a finding that AR is affirmatively consenting to the arrangements in the sense contemplated by the NI case.
78. For all the above reasons, I conclude:
-
- AR is not deprived of his liberty, and his placement does not engage Article 5 of the ECHR.
- This is because of what I shall refer to as the objective element.
- I do not find in AR’s case that he would be able to give valid consent if he were deprived of his liberty.
HHJ Burrows then went on to consider Article 8:
79. The parties were all in agreement that AR’s Article 8 rights are engaged by the care plan I am asked to approve. The LA, to their credit, recognise that there is a conflict between them, the provider and AR’s family. That is something that needs to be kept under review. AR’s voice needs to be heard and his interests represented. If Article 5 applied, of course, there would be an obligation on the LA to bring the matter back before the Court periodically, probably annually: see Salford City Council v J(or Re GJ and BJ) [2008] EWHC 1097 (Fam)Mr Justice Munby.
80. However, in this case, although the Court has no express obligation under the Convention to build a review into the final order, clearly there is a matter left open by the order I propose to make, and AR’s rights may still need to be protected by the involvement of the Court.
81. The Supreme Court in the NI case recognised that many individuals who are not deprived of their liberty for the purposes of Article 5 will nevertheless be subject to significant restrictions upon their autonomy and private life. The Court emphasised that such persons are not left without protection. Restrictions upon residence, care, contact and personal autonomy may engage Article 8 ECHR and remain subject to review through the Mental Capacity Act 2005, the jurisdiction of the Court of Protection and the statutory duties imposed upon public authorities. The premise underlying that analysis is that these alternative safeguards provide meaningful protection for those whose circumstances fall short of a deprivation of liberty within Article 5.
82. One of the difficulties with the way the NI case reached the Supreme Court, as a reference from the AG of Northern Ireland, is that the Court was not concerned with a real case, with evidence of how restrictions impacted on actual people, and with a first instance and appellate history of how the law dealt with the problems faced by those vulnerable people, their families and professionals at the “coal face”.
No doubt reflecting his previous experience, HHJ Burrows pointed to the first instance judgment in Cheshire West, which established (in essence) that all was not as it seemed on the papers. He continued:
87. 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 Schedule A1 protections, a r 1.2 representative (perhaps), the periodic review to the Court of Protection, or the entitlement to advocates.
88. In this case, however, the LA has decided to fund an advocate (a Care Act advocate) for a period of 12 months to ensure AR’s rights are observed, particularly on contact, but also to ensure that the restrictions are reviewed.
89. This is welcome, particularly as AR’s parents are not represented and need to deal with someone who is not representing the LA. They feel excluded from their son’s care in these proceedings.
90. The question is what, if anything, is the role for the Court? I think there is no application from the parties that the Court should adjourn this application until near to the end of the 12 months and then restore, perhaps after a round table meeting and further position statements. That would not be attractive to the Court. If there is a need for a review, then the review should be directed, and that probably means directing the LA to bring proceedings in around 12 months time for the Court to review the situation as it then is. The other alternative is to direct that if there is any dispute between the parties in around 12 months time, then the LA should then bring the case back to Court.
91. In this case, I see no reason to order a review. It is not necessary to protect AR’s Article 8 rights. Those rights will be protected by the involvement of the LA (with its duties) his family, and his advocate. If before the end of the 12 months it is thought that his rights may be at risk because of there being a dispute over the care plan at that point, then is the time when an application should be made to the Court for the resolution of a dispute.
Comment
In addition to the comments interspersed above, I would add two things:
- It is of no little importance that HHJ Burrows adopted the staged approach of considering the objective limb first: there seems in some quarters to be a tendency to rush first to considering ‘valid consent’ issues without actually asking the rather important question of ‘consent to what’?;
- HHJ Burrows was – rightly – at pains to draw attention to the need to have a careful eye to the reality of the protections that are said to be in other parts of the law. I have referred elsewhere to the ‘promise’ that DHSC might be said to have made to the Supreme Court about those protections: this case gives a clear example of what it means for that promise to be made concrete on the facts of an individual case.
[1] With light editorialising, noting, for instance, that all bar one of the Strasbourg cases considered in AGNI had been cited before the Supreme Court in Cheshire West.
[2] For more about this, and why this might be so, see the podcast that I did for Community Care, and also this blog for the British Institute of Human Rights.
