Key takeaways
Early cases test the Supreme Court’s new approach
Courts are beginning to apply the multifactorial test.
‘Valid Consent’ plays a central role in decisions
Doubts about valid consent may prove decisive.
Restrictions alone no longer determine a deprivation of liberty
Context, normality and individual circumstances all matter.
How will the Supreme Court’s new multifactorial test work in practice? The first reported deprivation of liberty cases following the Supreme Court’s decision in the challenge by the Attorney General for Northern Ireland (‘AGNI’) have now been published, offering valuable early guidance on its application and the factors likely to influence future decisions.
Our previous articles set out the background to the challenge and summarise the Supreme Court’s decision:
Supreme Court may redefine definition of deprivation of liberty | Hill Dickinson
A fundamental change to the definition of deprivation of liberty | Hill Dickinson
Oxfordshire County Council -v- P & Anor [2026] EWCOP 33 (T2)
P has a learning disability, limited verbal communication, a history of significant childhood trauma and functions well below her chronological age. Proceedings have been ongoing since January 2025 regarding P’s residence and care arrangements in her best interests.
At the hearing in July 2026 the Court considered, where it is in P’s best interests to reside, contact arrangements with her grandmother and whether or not she is deprived of her liberty in accordance with the new multifactorial test.
There was little dispute about the arrangements and restrictions on P in either her supported living placement or her grandmother’s home if she were to return to live with her.
The supported living placement involves the use of locked external doors, sensors on the front door and bedroom doors, window restrictors and P is not free to leave unless accompanied on a 1:1 basis. Overall she requires 35 hours of 1:1 support each week. It was noted that P could perform some basic tasks herself, such as getting herself breakfast, and the Official Solicitor (who represented P) suggested there was some sense of relative normality as P was able to go out on regular outings and attend local clubs.
It was noted that at her grandmother’s house, the overall position would not be much different.
Neither placement would require the use of chemical or physical restraint but, objectively, P is subject to ongoing supervision and not free to leave the placement without support in place.
The Court states that these factors ‘point towards the conclusion that she is not able to exercise her autonomy freely in either placement and thus may be deprived of her liberty notwithstanding that both placements are further removed from the paradigm of a prison cell identified in AGNI, and thus closer to relative normality’.
The Court then turned to the issue valid consent. The Supreme Court was clear in AGNI that where there is doubt about whether someone is validly consenting to their arrangement, no inference of valid consent should be drawn. There is considerable doubt about P’s understanding of ‘home’ and whether she is consenting to her arrangements and the Judge concluded that P was deprived of her liberty in the supported living placement. The Judge was unable to reach conclusions about whether or not P would be deprived of her liberty should she return to her grandmother’s house as P’s likely reaction to this and therefore whether or not she would validly consent remained unclear.
Re Mustafa (a child) [2026] EWHC 2159 (Fam)
The local authority sought to withdraw its application to extend a deprivation of liberty order in relation to Mustafa who is almost 16. The Guardian, who represents Mustafa, opposed the withdrawal on the basis that the frequency with which physical restraint is used on Mustafa is inconsistent with his rights under Article 5 of the European Convention on Human Rights.
Mustafa resides in a specialist residential school and restrictions in place include:
locked doors
at least 1:1 care and support at all times within the home and in the community, with 2:1 support permitted as necessary
supervised access to kitchen and sharp tools
support with administration of medicines and personal care.
Physical intervention is used only as a last resort where other de-escalation techniques have not been successful.
The Guardian highlighted 48 incidents over the past year and that Mustafa’s behaviour continues to necessitate the use of physical intervention on occasion which he finds difficult.
In considering whether Mustafa was deprived of his liberty, the Judge noted an argument that a child or young person can only give valid consent to being deprived of their liberty if they are deemed Gillick competent. The judge rejected this and stated ‘a child who is not Gillick competent may nonetheless have sufficient understanding of their views to be relevant as to whether they consent to aspects of deprivation of their liberty’.
However, the question was whether it was ‘compliance by Mustafa rather than valid consent’ and whether his apparent consent ‘is likely to be insecure, not of an enduring nature and likely to be revised and retracted’.
The Court agreed that Mustafa may withdraw any consent he has given at any time, including whilst physical restraint is being used on him. A recent decision of the Court of Appeal considered the power to physically restrain children in school regardless are of the child’s wishes, and taking this into account the judge considered that even if Mustafa withdraws his consent, the school nonetheless has the potential to restrain him under common law powers without breaching Article 5.
The judge concluded that Mustafa is not deprived of his liberty, noting that he is generally happy in his placement, and that any physical intervention was either consented to or is lawfully exercised under common law powers.
Interestingly, the Court also raised, but did not determine, a procedural point as to whether the Court can make or extend a deprivation of liberty order where the local authority does not seek one, ie whether the Court can exercise the inherent jurisdiction to make a deprivation of liberty order of its own motion.
Key takeaways
Although both judgments reflect the Supreme Court’s emphasis on relative normality and the broader context of a person’s living arrangements, the familiar themes of supervision, control, and whether P is free to leave appear to remain central.
The practical restrictions are still necessary and important as part of the objective test but must be assessed in the context of the person’s overall situation.
Objective normality is important but not decisive.
Weight is placed as to P’s consent to the arrangements. However, the key message from AGNI is reinforced; where there is doubt about valid consent, courts should be cautious about assuming consent exits.
No single factor is determinative.
A child who is not Gillick competent can, in theory, still consent to confinement under AGNI.
One of these cases determines there is a deprivation of liberty where there is no restraint, whereas the others conclude there is no deprivation of liberty when restraint is used. Whilst conclusions are reached of the specific facts of the case, this speaks to the different judicial interpretations and weight attached to different factors under the multifactorial test.
It is still early days, and it is hoped that guidance from the Court will continue to be provided but it is clear that the judgment from Cheshire West still exerts a strong influence.
