Just as his decision in Re AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2) arrived as the September Mental Capacity Report went to press, so HHJ Burrows’ latest decision on deprivation of liberty arrived just too late for the October Report. The decision in Re BM (Deprivation of Liberty) [2026] EWCOP 48 (T2) represents another careful application of AGNI (and a very helpful commentary on other cases decided so far).
As he noted at the outset, the question of whether BM, the 16 year at the centre of the application, was deprived of his liberty would have been “entirely straightforward” prior to 2 June 2026,[1] and would have led to the conclusion that BM was deprived of his liberty. HHJ Burrows noted that the Supreme Court in AGNI, replacing the “acid test” in Cheshire West with “a multifactorial and case specific, and therefore more nuanced, approach” intended that “making decisions of this sort should be capable of efficient, relatively speedy dispatch” (paragraph 1). HHJ Burrows gave a short judgment to set out his conclusions as to why BM was not now to be viewed as deprived of his liberty.
Of interest is the fact that, perhaps picking up on observations that both the decisions in the Oxfordshire case and that of Mustafa are somewhat difficult to reconcile with AGNI, HHJ Burrows noted that:
39. I was also referred to Oxfordshire County Council v P & G [2026] EWCOP 33 (T2) and Re Mustafa (A Child) [2026] EWHC 2159 (Fam). In my judgment those authorities are not inconsistent either with NI or with my own decision in Salford City Council v AR. Oxfordshire was principally concerned with whether apparent acceptance of arrangements amounted to valid consent where there was genuine uncertainty concerning the person’s understanding of their situation. Mustafa demonstrates that a person who lacks capacity under the MCA may nevertheless possess sufficient practical understanding of their circumstances to provide valid consent for Article 5 purposes.[2] The authorities demonstrate that contentment is not the same thing as consent. Equally, valid consent does not require capacity within the meaning of the MCA. The concept lies somewhere between those two positions.
BM had a complex of cognitive impairments, giving rise to substantial care and support needs. Having analysed the arrangement put in place to meet those needs, HHJ Burrows concluded as follows:
40. Weighing all the evidence together, and considering BM’s situation as a whole, I have concluded that the arrangements do not amount to a deprivation of liberty for the purposes of Article 5. I acknowledge that this is a finely balanced case. The restrictions are extensive. Their intensity would, prior to the decision in NI, have resulted in a finding of deprivation of liberty. However, the current exercise is not a mechanistic one. The restrictions must be understood in the context of BM’s disabilities, the purpose they serve, the life they enable him to live, the relative normality of the arrangements for somebody with his needs and, importantly, his own experience of them.
41. I have already referred to the significant restrictions that exist. They include 3:1 staffing, continuous supervision, restrictions on his ability to leave independently, environmental controls and the possibility of restraint. Those are all matters which weigh in favour of a finding of deprivation of liberty. I also accept the force of the ALR’s submission that BM is not living the life of an ordinary teenager. He is not in formal education. He has very limited peer interaction and aspects of his life are substantially controlled by others.
42. However, those features cannot be viewed in isolation. Similar levels of supervision were required within the family home before his removal into care. They would have to be present wherever BM lives. The restrictions serve a protective and enabling purpose. They are not punitive. They permit BM to live in an environment which he experiences as safe, predictable and supportive. His placement bears little resemblance to detention in any ordinary sense. Unlike ST, BM does not experience the arrangements as oppressive. Viewed as a whole, they are more accurately characterised as an intensive and highly individualised package of disability support than as confinement. Accordingly, I conclude that BM is not deprived of his liberty.
As in the AR case, HHJ Burrows did not then need to go on to consider valid consent to determine whether BM was deprived of his liberty. However, he gave some obiter observations:
43. It is therefore unnecessary for me strictly to determine the issue of valid consent. However, because the issue was fully argued before me, I shall record my view. Had it been necessary to determine the point, I would not have found that valid consent had been established. In my judgment consent must retain some meaningful content. It cannot be reduced merely to contentment or compliance. I accept that a person may lack capacity under the MCA whilst nevertheless possessing sufficient practical understanding of their circumstances to consent for Article 5 purposes, as demonstrated by Mustafa.
44. However, I also accept the cautionary approach adopted in Oxfordshire where genuine uncertainty exists regarding whether apparent acceptance truly amounts to consent. In my judgment BM’s evidence demonstrates contentment, attachment, trust and acceptance of his lived experience. It does not demonstrate sufficient appreciation of the restrictions themselves or of the arrangements under which he lives. In that respect I regard his circumstances as closer to Oxfordshire than Mustafa. Accordingly, had I concluded that the objective element of confinement was established, I would not have found valid consent proved. However, because I have concluded that the arrangements do not objectively amount to a deprivation of liberty, that issue does not affect the outcome of the application.
In similar vein to the approach taken in AR, HHJ Burrows concluded by considering whether there were further steps that the court needed to take to secure BM’s rights:
45. Having made that decision, there is one other issue I need to consider, namely BM’s Article 8 rights. I am satisfied that BM’s Article 8 rights are protected. He is a child subject to a care order. He has a social worker. There are regular meetings at the Local Authority to discuss, evaluate and modify his care plan. The Independent Reviewing Officer (IRO) remains involved in his case. In addition, he will continue to receive support under the statutory leaving-care framework. There is therefore no need for this Court to put in place any scheme of directions for the matter to be brought back before it.
Comment
It bears repeating that decisions reached at first instance do not set precedent as regards the application of AGNI, and are therefore to be regarded as ‘worked examples.’ However, as was the case in AR, this decision is another one which is particularly clear as an example of the type of thinking required.
One particular point of interest is HHJ Burrows’ consideration of what steps he could or should take to secure BM’s Article 8 rights. He is clearly right that, once seized of a case, the Court of Protection exercising its inquisitorial jurisdiction (and also public body required to act compliant with the ECHR), the court cannot wash its hands of a situation by determining that a person is not deprived of their liberty if there is a real possibility that their ECHR rights will be infringed if the proceedings simply stop. Probing whether (for instance) a Care Act advocate will be available is one course of action (although, as discussed in our October report, it does raise questions about the statutory basis for the appointment of a ‘rights protection’ Care Act Advocate). Setting a date for a review is another course of action, although it does bring with it a question that (so far) the courts have not had to address in any reported case, namely whether (a) the Legal Aid Agency will agree to fund representation at such a review; and (b) the person will satisfy the means test for such legal aid. In cases such as BM’s, it is likely that the person will never had had non-means-tested legal aid (it being one of the injustices of the current system that those subject to community DoL applications are not eligible for non-means-tested legal aid). But in a case which had been proceeding under s.21A, but where the court has now found that the person is not, in fact, deprived of their liberty (such that the DoLS authorisation must fall away[3]), they would only now be eligible for means-tested legal aid, which may well mean the difference between continuing to have legal representation and no longer having it.
[1] Nerdily, it would not perhaps have been straightforward prior to 19 March 2014, when Lady Hale for the majority redefined deprivation of liberty in a way which the Supreme Court in AGNI found to be too straightforward. Again, for the reasons discussed here, we are paying the price for not having a statutory definition of the cohort of people whom Parliament consider require oversight.
[2] Strictly, Mustafa was concerned not with MCA capacity, but Gillick competence. My doubts about Mustafa are primarily concerned with whether the caselaw supports the proposition that a child lacking Gillick competence to consent can necessarily be equated to a person lacking MCA capacity to consent: see further here.
[3] As the person can no longer satisfy the best interests requirement, one aspect of which is that they are a ‘detained resident.’
