Court of Protection rules 16-year-old boy is not subject to deprivation of liberty despite extensive restrictions

However, in BM (Deprivation of Liberty) Re [2026] EWCOP 48 (T2) His Honour Judge Burrows acknowledged that the restrictions on the boy, BM, are “extensive” and accepted that it was “a finely balanced case”.

The judge said that had the so-called ‘acid test’ from the 2014 Supreme Court ruling in Cheshire West been applied, the court would have determined that BM was deprived of his liberty.

However, in June this year 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 replaced that test with a multi-factorial and case specific approach.

This was “therefore more nuanced”, HHJ Burrows said.

The judge said the evidence throughout the proceedings demonstrated a loving and committed parental relationship. BM continues to enjoy and seek affection and contact with them.

However, BM’s behaviour had by Year 8 become increasingly challenging. His school attendance deteriorated and when he did attend, he was repeatedly excluded.

The judge said BM had had extremely limited formal education since then.

By 2024-24 BM required substantial support packages within the family home, with supervision levels reaching 3:1 and 4:1 at various stages. Police intervention was occasionally necessary.

In March 2025 the local authority took public law action. An interim care order was made and BM moved to unregulated residential care. A final care order was made a few months later, which was for BM to remain in residential care. “With no doubt heavy hearts, BM's parents consented to this,” HHJ Burrows said.

At placement 1, BM was extremely dysregulated and unsettled. Intervention occurred multiple times daily.

However, the judge noted that by late 2025 and throughout this year “incidents reduced dramatically, communication improved, trusting relationships developed, independence increased, access to the community expanded, and BM became more emotionally regulated”.

HHJ Burrows said there was no dispute that BM has autism spectrum disorder and severe learning disability. BM is also said to exhibit many features associated with Pathological Demand Avoidance.

The 16 year old meanwhile uses very limited verbal language, relying on gesture, vocalisation and behaviour to communicate. This requires familiar adults to interpret subtle cues, the judge said, with BM becoming rapidly dysregulated if he is misunderstood.

A care plan and a positive behaviour support plan are in place. BM lives in a solo residential placement specifically adapted to meet his needs.

The restrictions in place include that:

“i) BM is not free to leave at any time;

ii) He is under continuous visual supervision;

iii) There are locked doors and windows to prevent absconding;

iv) There is a minimum of 3:1 staffing 24 hours a day;

v) There are wake and watch staff;

vi) There are locked doors within the home (for the safe storage of medication and harmful products);

vii) Prescribed medication given to BM (Melatonin), although it is not used as restraint;

viii) There is community access which is subject to a dynamic risk assessment based upon behavioural presentation, and

ix) There is a use of physical restraint as a last resort to keep BM and those around him safe - restraint method being PMVA.”

HHJ Burrows noted that BM's wishes and feelings could be ascertained to a significant degree.

“The evidence consistently demonstrates that BM regards the placement as his home, he enjoys living there, has formed meaningful relationships with his carers, participates willingly in the activities available to him and derives comfort from the routines and predictability of the placement. Equally, the evidence demonstrates that he continues to value his relationship with his parents and enjoys regular family contact.”

The judge added, however, that he did not consider that the evidence permitted reliable findings regarding BM's wishes and feelings about the restrictions themselves.

“Whilst BM's conduct plainly evidences contentment with his lived experience, there is insufficient evidence that he appreciates the nature and effect of the restrictions imposed upon him so as to express a meaningful view about whether those restrictions should continue. His wishes and feelings are therefore ascertainable in relation to the life he presently lives, but not in relation to the legal question of whether that life involves a deprivation of his liberty.”

It was argued on behalf of the local authority that BM was not deprived of his liberty, but, in any event he was able to valid consent to the restrictions.

On behalf of BM via his accredited legal representative (ALR), it was submitted BM was being deprived of his liberty and was not able to give valid consent to his restrictions.

Considering the objective element, HHJ Burrows said: “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 [AGNI], 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.”

The judge said the restrictions in place were all matters which weighed in favour of a finding of deprivation of liberty. He also accepted the force of the ALR's submission that BM is not living the life of an ordinary teenager as he is not in formal education, he has very limited peer interaction and aspects of his life are substantially controlled by others.

However, those features could not be viewed in isolation, HHJ Burrows said, as similar levels of supervision were required within the family home before BM’s 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 [in the case of Essex County Council v MH and 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.”

The judge accordingly concluded that BM is not deprived of his liberty.

HHJ Burrows then turned to the issue of ‘valid consent’ (the subjective element), although he acknowleged that it was not strictly necessary for him to do so.

He said: “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 [Re Mustafa (A Child) [2026] EWHC 2159 (Fam)].

“However, I also accept the cautionary approach adopted in Oxfordshire [Oxfordshire County Council v P & G [2026] EWCOP 33 (T2)] where genuine uncertainty exists regarding whether apparent acceptance truly amounts to consent.”

The judge said that in his judgment BM's evidence demonstrated 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.”

HHJ Burrows continued: “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.”

The judge went on to consider BM's Article 8 rights, saying he was satisfied that these were protected.

“He [BM] 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.”