What do recent cases tell us about AGNI and deprivation of liberty for children and young people?

This article is written by Julia Jones, Callum Scott, and Shivani Maini.

We consider what guidance for local authorities, providers, and practitioners can be taken from two recent reported cases on deprivation of liberty, including the role of a child's consent when assessing confinement in residential placements.

The High Court's decision in Re Mustafa (a child) [2026] EWHC 2159 (Fam) is the first reported authority from the Family Division in which the Supreme Court's reasoning in AGNI has been applied to the question of whether someone under 16 is deprived of their liberty. Mustafa is a 15-year-old looked after child with Prader-Willi syndrome, developmental delay and additional learning needs who is living at a specialist residential school. Although his placement involves extensive restrictions, the High Court concluded that Mustafa is not deprived of his liberty, and thus the court’s authorisation of such deprivation was no longer required.

The central question for the court was whether Mustafa was being deprived of his liberty. Traditionally, practitioners have often focused on the extent of the restrictions imposed on a child applying Cheshire West. However, following AGNI, applying the multifactorial test the court was required to consider a further question: whether Mustafa could consent to the arrangements and, if so, whether he in fact did consent to them.

The judgment confirms that, following AGNI, a child who is not fully Gillick competent may nevertheless have sufficient understanding to consent to their living arrangements.

Background

At his residential placement a number of measures were in place to keep Mustafa safe and to meet his needs. These included locked external doors, a locked kitchen at night, continuous supervision, one-to-one support and, when necessary, physical restraint.

A Deprivation of Liberties Safeguarding order had been made in June 2025 authorising the deprivation of Mustafa’s liberty under the Inherent Jurisdiction.

Following the Supreme Court’s landmark judgment in AGNI, the local authority reviewed Mustafa's circumstances and concluded that a further order authorising a deprivation of liberty was no longer required.

The local authority’s analysis concluded that the current arrangements did not result in a deprivation of liberty (“DoL”) but rather were arrangements to protect Mustafa. And furthermore, the local authority concluded that he was in any case accepting of the restrictions. As such, the local authority sought to withdraw an application it made on 4 June 2026 for a renewal of the authorisation.

The Children's Guardian disagreed with that approach. The Guardian was concerned about the extent of the restrictions, the use of restraint and whether Mustafa's apparent agreement with the arrangements reflected genuine consent or simply compliance with the adults caring for him.

The Court's Decision in Re Mustafa

The High Court agreed with the local authority and found that Mustafa was not deprived of his liberty, as he was not objecting to the placement, even though he often was aggressive towards staff and self-harmed, and needed physical restraints (two persons holding each of his arms) to keep him and others safe. The Court also found he was expressing valid consent.

Central to the court's reasoning was the evidence that Mustafa consistently expressed satisfaction with his placement, enjoyed living at the school and understood the reasons for the restrictions placed upon him. He had repeatedly stated that he wished to remain there and had never attempted to leave. The court also noted the substantial progress he had made since moving into the placement and described the arrangements as having an "overwhelmingly positive" impact on his life.

Importantly, the court held that, in the post-AGNI landscape:

A child who is not Gillick competent may nonetheless have sufficient understanding for their views to be relevant as to whether they consent to aspects of deprivation of their liberty. [39]

On the facts, Mustafa was found to have sufficient understanding of the arrangements and their consequences, for his views to be relevant in determining whether he consented to the deprivation of liberty.

The Significance of Restraint

Re Mustafa also contains analysis as to the use of restraint. The Guardian argued that the power to physically restrain Mustafa was indicative of confinement. The court, however, attached significance to the fact that the school possessed independent legal powers to use reasonable force where necessary. These powers could be exercised to prevent injury, damage to property, offending behaviour, and to maintain good order and discipline.

In Recorder Jack’s assessment, applying the Court of Appeal's February 2026 decision in FXS v Mulberry Bush Organisation Ltd, even if Mustafa were to withdraw consent to a particular act of restraint, the school's ability to restrain him lawfully under its existing statutory and common law powers remained regardless of his withdrawing consent.

The Court's Decision in Essex County Council v ST

The High Court subsequently considered these issues in Essex County Council v ST and others (Deprivation of Liberty) [2026] EWHC 2328 (Fam), which concerns another 15-year-old child. This time the High Court concluded that the young person is deprived of her liberty.

Background

ST is a vulnerable young person, who has experienced 28 placement changes from when she was placed in the care of the local authority. The lack of provision of appropriate accommodation for young people like ST has been noted in the strongest terms in this judgment. Due to ST’s repeated acts of self-harm and absconding when she is at very serious risk of harm, she has been the subject of orders authorising the deprivation of her liberty on three occasions since 2024.

Much of the judgment focuses on the concerns regarding the provision of services to ST, including in relation to her education and mental health support. In terms of whether she is deprived of her liberty it was stated:

“On any view it is clear the order sought by the local authority that include up to 3:1 supervision, locked doors and windows in the placement, and the way those restrictions are experienced by ST, which she objects to, means that she is deprived of her liberty.”

Practical implications of these judgments

While every case will turn on its own facts, these judgments highlights several points which practitioners may wish to consider:

• A child's voice remains central to decision-making and should be actively sought, recorded and reviewed. Local authorities, and those delivering care and support to a child, should continue to obtain and record the child's wishes and feelings carefully.

• Re Mustafa shows that a child's consistent views about their placement can carry significant weight when the court is considering whether restrictive arrangements amount to a deprivation of liberty.

• Assessments should consider not only the presence of restrictions but also the child's own understanding of, experience of and response to, those arrangements. This includes their wishes and feelings, level of contentment and any signs of objections to the arrangements.

• The fact that an individual lacks legal capacity does not necessarily mean that they are unable to understand and consent to their situation in a manner that prevents it from becoming a deprivation of liberty.

• Restrictive practices, including restraint, continue to require careful governance, oversight and justification.

• Commissioners and providers alike should ensure that their records clearly demonstrate why restrictions are needed, how they promote the child's safety and welfare, and how the child's views have been considered in decision making.

• There must be a system of proper review and oversight, confirming that children’s needs are being appropriately met, to avoid detrimental consequences to individual children.

Conclusion

These recent cases are important reminders that when considering deprivation of liberty for children and young people, the multi-factorial assessment as set out in AGNI applies and the focus is not solely on identifying restrictions. A broader assessment of an individual’s circumstances should be considered where no single factor is determinative. There remains a need for rigorous scrutiny of restrictions.

The Court has reinforced the importance of meaningful participation by children, careful recording of their views, and clear evidence about their understanding of care arrangements.

We can expect fewer cases of children and young people who are assessed as being deprived of their liberty following AGNI. However, as the case of ST shows due to the lack of provision there are still many young people in accommodation which is inappropriate, often far from family and friends and the level of objection to such placements is likely to be high and so there will still be a considerable number of applications to Court for authorisation of deprivation of liberty which are required.

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