When is a child deprived of their liberty? The case of Re B

There has been another important decision considering the Supreme Court's judgment in AGNI, this time in the context those under 16 years of age.

In Salford City Council v The Mother & Ors, Ms Justice Henke considered how the multifactorial approach in AGNI applies to a nine-year-old child living in a kinship foster placement. The decision provides helpful guidance on assessing deprivation of liberty for children and when an application under the inherent jurisdiction will still be required.

Background

The case concerned B, a nine-year-old child with Autism Spectrum Disorder, Global Developmental Delay and who has complex behavioural, emotional and developmental needs. She had been living with a member of her extended family, C, under a final care order since she was approximately ten months old. B regarded C as her mother and was clear that she was happy in the placement, felt safe and did not want to move.

B required intensive supervision at home, at school and in the community. The arrangements included:

• 1:1 supervision, increasing to 2:1 in some circumstances

• locked external doors, window restrictors and restricted access to parts of the home

• the use of reins and a secure buggy

• supervision of contact and community activities

• a harness when travelling by car, if required

• a safe space bed, sensor alarm and pressure mat

• provision for physical intervention at school as a last resort

These arrangements had previously been authorised as a deprivation of B's liberty under the inherent jurisdiction. Following the Supreme Court's decision in AGNI, however, the court reconsidered whether they in fact amounted to a deprivation of liberty.

By the final hearing, both the local authority and B's Children's Guardian agreed that they did not.

Applying AGNI to children

Henke J confirmed that whether a child is deprived of their liberty must now be assessed using the multifactorial approach in AGNI. The starting point is the child's individual or "concrete" situation, taking account of the nature and duration of the restrictions, their purpose, their effect on the child and how they are implemented. Restrictions must be considered both individually and cumulatively.

Importantly, factors such as the relative normality of the child's circumstances and the purpose of the restrictions are relevant as part of that overall assessment. The child's age also remains relevant, but as one factor within the wider analysis rather than through a direct comparator or "rule of thumb". Henke J therefore considered the earlier approach in Re A-F (Children) (No 2), which suggested age based benchmarks for when constant supervision was likely to amount to confinement, should give way to the individualised approach required following AGNI.

The judgment also confirms that AGNI's distinction between legal capacity and valid consent applies to children. The question is not simply whether a child has legal capacity or is Gillick competent, a child may be sufficiently aware of their environment, understand their circumstances and express a meaningful view about them. The weight attached to that view will depend on the child's age, maturity and understanding.

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. As we have seen in other post-AGNI cases, where there is serious doubt, no inference of valid consent should be drawn.

Why was B not deprived of her liberty?

Although the restrictions imposed on B went beyond those ordinarily imposed upon a nine-year-old child, Henke J concluded that, viewed as a whole, they did not amount to confinement.

Several features of B's "concrete situation" were significant.

Although B was formally in foster care, from her perspective she was living in her family home. She regarded C as her mother and C's adult son as her brother, looked to them for comfort and safety, and was happy at home and school. The arrangements therefore had what the judge described as the "relative normality of family life".

The restrictions also had a protective purpose and, in some instances, enabled B to do more rather than less. Her secure buggy, for example, allowed her to access the community safely, while supervision by C facilitated activities outside the home. Reins were used to prevent B running into danger while still allowing her to move around.

Physical restraint at school had been rare, occurring on three occasions during the preceding 12 months, and was used only as a last resort in emergencies. B was not restrained at home. Her prescribed medication was being used to manage inconsistent sleep rather than her behaviour and was not being used for sedation.

Standing back and looking at the cumulative effect and purpose of the restrictions, Henke J concluded that there was no confinement. B was happy and content with her lived experience. Article 5 was therefore not engaged and further court authorisation was unnecessary, resulting in dismissal of the proceedings.

Can a local authority consent to a child's confinement?

The judgment also provides an important clarification following AGNI about children who are subject to care orders.

Henke J considered whether J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478, in which the Court of Appeal held that a local authority cannot validly consent to the confinement of a child in its care, remained binding following AGNI.

The court concluded that it did.

Although J relied on Cheshire West, its central reasoning was based on the purpose and safeguards of Article 5 and HL v UK. Allowing the State, through a local authority, to consent to confinement imposed by the State would remove the independent safeguards which Article 5 is intended to provide. Henke J observed that permitting this would "drive a coach and horses through the purpose of Article 5."

Accordingly, a local authority cannot consent to the deprivation of liberty of a child in its care, whether the child is subject to an interim or final care order.

When will an application be needed?

The judgment goes on the provide practical guidance to practitioners on when an application will be required.

Where the multifactorial assessment shows that a child's arrangements obviously amount to a deprivation of liberty, the local authority will need to apply under s100 of the Children Act 1989 for permission to invoke the inherent jurisdiction and, if permission is granted, seek court authorisation for the deprivation of liberty.

Importantly, Henke J held that an application should also be made where the position is finely balanced. In those circumstances, the case should be brought before the court for independent scrutiny. Conversely, where the facts establish that there is no deprivation of liberty, as in B's case, no application is required.

Key takeaways

• AGNI applies to the assessment of deprivation of liberty for children as well as adults. The starting point is the individual child's concrete situation and lived experience.

• The assessment is multifactorial. The nature, duration, purpose, effect and implementation of restrictions should be considered individually and cumulatively.

• A child's age and the relative normality of their circumstances remain relevant, but there is no simple age based test for confinement.

• A child living in a family or community setting can still be deprived of their liberty. However, living in their own home in accordance with their wishes and feelings makes a deprivation of liberty less likely.

• The child's own experience matters. Legal capacity and valid consent for Article 5 purposes are distinct concepts, and a child's views should be considered by reference to their age, maturity, awareness and understanding.

• Protective restrictions can still restrict liberty, but their purpose is relevant to the overall analysis.

• A local authority cannot consent to the deprivation of liberty of a child in its care. J v Bath and North East Somerset Council remains binding on this issue following AGNI.

• Where deprivation of liberty is obvious, or where the position is finely balanced, local authorities should seek the court's scrutiny through an application under the inherent jurisdiction. Where the arrangements clearly do not amount to a deprivation of liberty, court authorisation is not required.

The decision provides another useful example of the courts working through the practical consequences of AGNI. It reinforces that restrictive arrangements cannot be considered in isolation. For children in particular, the focus must be on what those arrangements actually mean for that child, in that setting, and in the context of their lived experience.

If you'd like to discuss any of the issues raised in this blog, please contact Sophie Ball. You can also visit our mental capacity webpage for more information.

Our content explained