Court of Protection judge finds no deprivation of liberty in case post AGNI

In SM, In the Matter Of [2026] EWCOP 46 (T2) (03 September 2026), HHJ Sue Williscroft said: “The arrangements do not accord with SM's wishes as she would like to live in an (unavailable) different place, but in reality it would appear she welcomes the support she has.

“Looking at the whole situation I note her views as expressed from time to time but also her experience of life of what I conclude is her home rather than a place of confinement in my assessment.”

The case concerned SM, an adult female, who was born in 1997 and has diagnoses of severe learning disability, catatonia, major depression and autism.

At the time of the hearing, SM was residing in a supported living placement (a single occupancy bungalow) with a package of care provided by a local service.

The arrangements for SM's residence and care are commissioned by the applicant, Derby City Council.

The judge noted: “She (SM) has throughout expressed a wish to move elsewhere but, despite extensive placement searches, no alternative option has been identified at this time. In the circumstances, there is no best interests decision for the Court to make and the parties agree that the proceedings should now conclude.

“However, an outstanding issue is whether SM is deprived of her liberty within the meaning of Article 5 ECHR, following the judgment of the Supreme Court 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 ('AGNI').”

The local authority did not believe SM was deprived of her liberty. The ALR (Accredited Legal Representative) was of the view that SM was deprived of her liberty.

According to SM’s social worker, she can be aggressive to herself, others and her environment, and needs support to ensure she eats, toilets, bathes and is clothed and takes part in all social activities.

At times her behaviour can be very challenging and she and others are at risk as a result.

The judge noted: “This has included causing flooding, breaking items, attempting to damage cars when out and moving in front of traffic. She has self-harmed and tried to harm others. Skilled staff are needed to distract her and ensure she becomes calmer and responsive.”

In 2023, SM told her ALR that she wanted to move to a residential place, which she noted had not worked for her before.

SM was asked if she would stay if a housemate was found for her and she said no.

The care provider continued to look if there was another suitable home for her. For a variety of reasons, none was available.

Later that year, SM spoke to her ALR and discussed wanting to live with people and also, "I would like a two-bed house with swimming pool", and "I want a new house with an upstairs".

In 2024, SM's mother expressed the view that SM would never be fully satisfied with where she lived and had previously not enjoyed sharing accommodation with others.

The parties agreed a summary of the law post-AGNI, set out by the judge as follows:

“At para 53 (i) of AGNI the court said, (i) The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question.

“At para 53(ii) of AGNI the court said:

"(ii) In addition to the objective element of confinement in a restricted space for a significant period, an individual will only be considered to be deprived of liberty if, as an additional subjective element, they have not validly consented to the confinement in question (Storck). Valid consent is therefore a powerful factor in the assessment. It is an autonomous concept and not to be equated with the concepts of consent for the purpose of waiver of rights under the Convention or of legal capacity in domestic law. The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty. […] On the contrary, an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5."

“In para 53 (iii) of AGNI the court said:

"although the objective and subjective elements of deprivation of liberty are often considered sequentially by the European court in its assessment of an applicant's specific situation, there is an overlap. The requirement to take account of the 'type' and 'effects and manner of implementation' of the measure in question means that the assessment of the objective element can take account of the specific context and circumstances of restrictive measures that are different from the paradigm of confinement in a cell".

“And in (iv):

"the effect of restrictions on an individual including their compliance and the lack of objection is relevant in assessing the objective element of confinement. The relative normality of the placement is also a relevant factor in this assessment".

Applying this to SM’s circumstances, the judge said: “The concrete situation for SM, in my assessment, is that she has a high level of support that ensures that she is fed, hygienic and safe and able to engage in her interests including visiting her mother, going shopping etc. This skilled support manages dysregulated behaviour by calming and distraction.

“To consider if she is deprived of her liberty I must consider: can she leave if she wishes to, are her movements controlled and how isolated she is. Is there something in her experience that is similar to imprisonment or containment perhaps better described? She has never chosen to leave or refused to return when out. While doors are locked that is ordinary for many homes - I do not regard that as locking her in.”

The judge observed that if SM lived at home with her mother, who could not manage this now, she would have the same living situation, with encouragement about sleeping and eating, help and advice.

She noted that more professionals achieve that now, but do so in an environment that is SM’s home.

HHJ Sue Williscroft concluded that, objectively, SM is not deprived of her liberty.

The judge said: “The ALR and Local Authority agree that SM is not providing valid consent. SM has informed her legal representatives, and myself during a judicial visit, that she does not want to remain in the current placement, that she only wants 1:1 support when going out, that she would like to live with other people and that she does not want to be 'in care'. […] Her inability to give a reason to move somewhere else is in my view not an expression of permanent preference since the variety of elsewhere she mentions is so variable and this is in response to direct questions about it. Overall, however, both the local authority and ALR accept she is/has not given valid consent and I accept that subjectively there is no evidence she has.”

She continued: “The arrangements do not accord with SM's wishes as she would like to live in an (unavailable) different place, but in reality it would appear she welcomes the support she has.

“The ALR argued the starting point is that SM's views are decisive: they can transform the arrangements for her residence and care into a deprivation of liberty, even if the same conclusion might not be reached for someone in the exact same situation. I cannot accept that is the law or reality since it suggests wishes can change the real lived experience into something different.

“Looking at the whole situation, I note her views as expressed from time to time but also her experience of life, of what I conclude is her home rather than a place of confinement in my assessment.”

Lottie Winson