The first issue I have considered is whether P’s current or future living and support arrangements amount or would amount to a deprivation of her liberty. Factually there is little dispute about the arrangements and restrictions placed on P in her current placement or, in fact, if she were to move to live with G. Her current placement is supported living rather than a secure residential unit, but still involves locked external doors, sensors on the front door and bedroom doors, window restrictors and P is not free to leave unless accompanied by one-to-one support which she requires for all outings, appointments and journeys (B271, B273, B274). She can perform some basic tasks for herself within the placement, such as getting herself breakfast at times, and does not need waking support overnight but overall, her needs are such that she requires 35 hours of one-to-one support each week. As was submitted by Ms Fox for the OS, it is arguable that the current placement allows P some sense of relative normality because she can go on regular outings and attend local clubs. Physically the property also has an appearance of relative normality a world away from a prison facility (B87-B91 photographs of the placement). However, I agree with Ms Fox’s summation that P is, in reality, subject to ongoing supervision and unable to leave the placement without support in place. To some extent, that overall position would be little different at G’s house. Locked external doors are not uncommon in private residences at night or even during the day sometimes, and G’s evidence to me was that she accepted that P would need support to leave her home beyond going into the garden and, even then, G would check on her. Sensors are not present at G’s home as far as the evidence shows, nor are there window restrictors in place at present, though the risk assessment by the ASW in the shadow care and support plan were P to return to live with G notes that these would be required (B632). There is thus a minor qualitatively lower level of environmental restrictions potentially in place at G’s house for P.
Neither placement option requires any level of chemical restraint nor physical restraint of P. However, objectively P is not free to leave either her current placement or G’s house when she chooses and would be subject to a high level of supervision in either placement as evidenced by the proposed package of support in the shadow care plan. These are factors which would 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 judgment goes on to explain that "the main issue about deprivation of liberty [in the case] is P’s consent or lack of consent", which is explored further in the judgment.
Personally, i am most interested in the determination that the arrangements indicate confinement. What are others views on the conclusions reached? Although not having all the facts, the judgment explains that there is, no chemical restraint, no physical restraint, no objection from P, that “both placements are further removed from the paradigm of a prison cell identified in AGNI, and thus closer to relative normality.” and “Physically the property also has an appearance of relative normality a world away from a prison facility” (para 16), no evidence that P sees the restrictions as ‘a major intrusion in their life’ and that '[P] can perform some basic tasks for herself within the placement, such as getting herself breakfast at times, and does not need waking support overnight but overall, her needs are such that she requires 35 hours of one-to-one support each week […] it is arguable that the current placement allows P some sense of relative normality because she can go on regular outings and attend local clubs’. To me i can’t see how this would amount to confinement post AGNI?
I have an almost identical case which was, just before AGNI, approved by the Court for CoP DoL, and has been for the last 3 years. Since AGNI I have started to consider if my person would even qualify now, as there is no objection, despite the high level of support, and at regular reviews a definite sense of being settled and content in the environment. My person does not always verbalise their feelings in relation to the placement and when they do it is often caught up in some form of delusional thoughts relating to religious content. However, I believe my person could be giving tacit consent, as their behaviours in general do not indicate any upset or objection regarding where they live and the circumstances under which they live. Apparently I don’t need to review the CoP DoL until it is due to be reviewed, but it has definitely got me thinking.
Hi James - I agree with your analysis. This really is confusing. I think your analysis is spot on. Is it because in paragraph 19 objection/acceptance is disputed?
Thanks Steve, and i suppose that may be the case but ultimately the judge decides “19… On balance, the evidence before me supports a conclusion that P has some awareness of where she is living and where she has lived, including in the past with her parents, but otherwise overall she is consistently confused about where and with whom she wants to live and her wishes and feelings are, as described by the ASW, “muddled”. I cannot therefore find that P has clearly and consistently expressed a wish to return to live with G, but I do note that this does not in any way diminish the undoubted bond between the two of them nor that G cared for P for the majority of P’s life on the evidence before me.”… This would still need to be in CoP because of the dispute about what arrangements are in P’s best interests, but not every dispute between those interested in P’s welfare and those commissioning the care automatically means this points towards P being confined… If i get a chance later (meant to be a NWD ) i may try and write something about the difference and see what others views are in relation to this.
I really hope people do not put to much wait on this judgment as it appears, even in its language, to have more in common with Cheshire West than it does with AGNI.
It certainly feels like we have gone back to how things were pre-Cheshire West. Back to when it was almost impossible to get a consensus opinion about whether a situation amounted to a deprivation if liberty or not. It was much easier to reach a consensus when applying the acid test. And now we know that it was actually too easy. A multi-factorial consideration provides, by definition, multiple points to disagree about. I’m not at all sure things will become clearer even as more judgments happen or more guidance is published. I hope I’m proved wrong.
Hi Nick - maybe i am more of an optimist … I should have said that outside the above published judgment I have already heard of some consistency being found with applying the AGNI judgment in practice. This is well outlined in this article Objections (and breached conditions) after AGNI – Promoting Open Justice in the Court of Protection, where they note an apparent focus on objections being a key consideration when determining both the objective and subjective limbs - “It will be interesting to see how the apparent reliance on ‘objections’ as a key determinant of ‘deprivation of liberty’ continues to develop in this and other cases.” (see also para 189 of AGNI and Eldergill’s observations).
Objection being a key factor also seems consistent with what the DHSC stated in its ‘update’ Changes to the definition of deprivation of liberty - GOV.UK, where they state, “It should be noted that the issue of whether a person is objecting to the confinement is relevant to the question of objective deprivation of liberty. Where a person is objecting, then it follows that valid consent is unlikely to be present. If there is an absence of objection when the person is capable of objecting, then it is more likely that the person is not being confined.”
“Regrettably the twin concepts are not straightforward. Practitioners have been told which factors are irrelevant. But no guidance is given as to when “supervision” is not “control”; or when “supervision and control” are not “complete” or “continuous.” There is no analysis as to what it means to be “free to leave” or its inter-relationship with its twin concept. Reference is made to Munby LJ’s, “I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses… ” But that does not take us much further, particularly if there is no alternative to go to or no-one else to live with or if the person is living in their own home”.
Always the optimist, I think a consensus on an interpretation of AGNI will be reached just as quickly as was found for Cheshire West… But maybe that is because i am one of the few that thinks that AGNI was the right decision (NB: ignoring the needless complexity of ‘valid consent’ which Ben Troke explains perfectly here SCIE Webinar 2026 - SCIE).
When I stand back at look at all the factors relevant to the assessment as to whether there is a deprivation of liberty, in my judgment there is no deprivation of liberty. Mustafa is, as the Guardian sets out at length, generally happy in his placement. Where the school uses physical restraint, it either has Mustafa’s consent or it is entitled to use restraint under its common law powers. Either way, there is no deprivation of liberty such as to give rise to a violation of Article 5(1). An extension of the DOLs order is therefore neither necessary nor proportionate and I refuse to grant one.
) i may try and write something about the difference and see what others views are in relation to this.
… I should have said that outside the above published judgment I have already heard of some consistency being found with applying the AGNI judgment in practice. This is well outlined in this article 
which Ben Troke explains perfectly here