AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2)
Judge: His Honour Judge Burrows
Date: 4 September 2026
Background
AR is a 25-year-old man with moderate to severe learning disability and autism who, until 2025, had lived with his parents before being transferred to a supported living placement. There was broad agreement between the parties that the placement met AR’s needs and that it was not in his best interests to return home to live with his parents.
The principal dispute concerned contact. AR’s parents sought increased contact, including home visits, overnight stays and ultimately unsupervised arrangements. The court was also required to determine whether the restrictions imposed upon AR amounted to a deprivation of liberty for the purposes of Article 5 following the Supreme Court’s decision in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 (‘AGNI’).
The care plan at AR’s placement involved extensive restrictions. He was subject to 24-hour one-to-one supervision, two-to-one staffing in the community, locked external doors and gates, CCTV monitoring, staff-controlled access to the community and occasional physical redirection when required for his safety.
Decision
The court found that AR lacked capacity in relation to residence, care, contact and litigation decisions.
In relation to contact, Judge Burrows accepted that AR’s relationship with his parents was important and should be promoted. However, he concluded that home visits and overnight contact were not presently supported by the evidence. The court endorsed a gradual approach, requiring the parents to engage consistently with professionals and permitting future consideration of expanded contact arrangements if circumstances allowed.
The more significant aspect of the judgment concerned deprivation of liberty. Judge Burrows made clear that it was not his job to give guidance on the application of the AGNI multifactorial test, as every case is fact specific. However, he did take great care to explain how the test applied to AR’s factual circumstances. The judge identified several key factors for AR: the nature of the setting, the purpose of the restrictions, relative normality, protective motivation, and the person’s objection or consent.
Although accepting that the restrictions imposed on AR were substantial, the court concluded that they did not amount to objective confinement for Article 5 purposes. Particular weight was placed on the fact that the placement was not a secure or custodial environment, that the restrictions existed solely for AR’s care and protection, and that he was enabled to form relationships and participate in community activities and daily life to the greatest extent possible.
Having found that there was no objective confinement the judge was not required to determine whether AR could provide valid consent. However, he did express the view that had there been an objective confinement AR would not have been able to give valid consent.
Judge Burrows therefore concluded that AR was not deprived of his liberty and that Article 5 was not engaged.
The judge recognised that AR’s Article 8 rights (private and family life) remained heavily engaged because of restrictions on residence, care and family contact. The local authority had, however, agreed to fund an advocate for 12 months to help protect AR’s interests and review contact arrangements. The judge declined to order a mandatory court review, holding that AR’s rights could adequately be protected through the involvement of the AR’s family, his advocate, and the local authority’s statutory duties, and in the event of a dispute a further court application could be made.
Comment
This is one of the first published Court of Protection judgments to consider the practical consequences of AGNI. The judgment demonstrates the clear departure from the former Cheshire West approach, under which restrictions of the type imposed upon AR would almost certainly have satisfied the acid test for a deprivation of liberty.
The decision is noteworthy because it emphasises the importance of context. Protective restrictions, even when extensive, may not amount to a deprivation of liberty where they form part of a relatively ordinary supported living arrangement designed to maximise an individual’s welfare and participation in community life.
As practitioners begin to navigate the post-Cheshire West landscape, AR provides an early indication of how courts may approach deprivation of liberty assessments in community settings, with a renewed focus on context, purpose and the reality of an individual’s lived experience.
The full judgment can be found here.
