It’s still a deprivation of liberty: the first published judgment post AGNI

The first post AGNI published judgment is now available. The judgment by Her Honour Judge Owens in Oxfordshire County Council v P [2026] EWCOP 33 (T2), was handed down on 24 July 2026. The proceedings concerned where it was in P’s best interests to reside and receive care and, in particular, whether she should remain in her supported living placement or return to live with her grandmother (“G”) on a trial basis. As part of the proceedings, the Court was asked to consider whether P was deprived of her liberty at her supported living placement and whether she would be deprived of her liberty if she returned to live with G. 

The Decision 

P is described as having a learning disability, limited verbal communication, and complex emotional needs arising from significant childhood trauma. The restrictions on P at the supported living placement were as follows:

• Locked external doors;
• Sensors on the front door and bedroom doors;
• Window restrictors;
• 35 hours of 1:1 support each week; 
• 1:1 support for all community access; and 
• P is unable to leave without 1:1 support.

Notably, was the absence of some common restrictive practices in packages of care. There was no mention in the judgment of any:

• physical or chemical restraint of P;
• use of CCTV;
• locked rooms or areas of restricted access within the supported living placement.

Whilst P had some 1:1 support – this was not 24/7. She didn’t require waking overnight care.

The judgment notes that, physically, the supported living placement has the appearance of relative normality and was “a world away from a prison facility.” It was also recognised that the care arrangements allowed P some sense of relative normality: P could perform some basic tasks for herself (e.g. getting herself breakfast at times) and P also went on regular outings and attended local clubs.

HHJ Owens concluded (with agreement from all of the parties) that P was objectively deprived of her liberty at her supported living placement. HHJ Owens noted that, in reality “P was subject to a high level of supervision”,  was “objectively not free to leave” when she chooses and was not able to exercise her autonomy freely.

With regards to whether P was giving “valid consent” to the care arrangements at the supported living placement, HHJ Owens referred to considerable doubt about the extent of P’s understanding of ‘home’ and she had given different views about where, and with whom, she wanted to live at different times. On balance, therefore, HHJ Owens was not satisfied that there was evidence that P was giving valid consent to the living arrangements. 

HHJ Owens found that the objective and subjective element were therefore both satisfied at the supportive living placement. 

When considering whether there would be a deprivation of liberty should P return to live with G, it was stated that most of the restrictions set out above would also apply at G’s house and therefore this pointed towards the objective limb being satisfied for a deprivation of liberty. However, as it was not clear what P’s reaction would be to a return to live with G, it was not possible to draw a conclusion about the subjective element of the test (i.e. whether P would give “valid consent”) without a trial period taking place and further review.

Analysis 

HHJ Owens described the post AGNI test for deprivation of liberty as “multifactorial with no single factor being determinative, though valid consent will be a powerful factors in the assessment.” She approached the test by considering the objective element first but did not draw a conclusion on that until she had also considered the issue of valid consent, emphasising the new overlap between the objective and subjective elements of the test.

”Valid consent” appears to have been an important factor for both the objective element as well as the subjective element of the test - suggesting that identifying the level of objection will be key in determining whether there is a deprivation of liberty. However; it is also interesting that, in applying the multifactorial test, HHJ Owens talked very much in the language of the “acid test,” placing great weight on P being under continuous supervision and control and not free to leave. Maybe this is simply professionals using the language that they are familiar with (given that it is still early days since the AGNI judgment), or perhaps it’s an indication that the “acid test” will continue to play an important (albeit not determinative or exclusive) role in defining a deprivation of liberty. Only time will tell…