Deprivation of Liberty in children post-AGNI

The High Court has handed down the first reported decision considering how deprivation of liberty may be defined in cases concerning children, following AGNI (see our previous blog here).

Re Mustafa concerned a 15-year-old child living with Prader-Willi syndrome, developmental delay and additional learning needs. Mustafa resided full-time at a specialist residential school and was subject to a full care order, held by the local authority. He was able to express his preferences and had described himself as happy and content living at the school.

The local authority held a deprivation of liberty safeguarding order which authorised a broad range of restrictions, including:

• locking the front door;
• locking the kitchen door at night;
• 1:1 support both within the home and in the community;
• constant supervision;
• the administration of medication to safeguard Mustafa's health; and
• the use of the minimum degree of force or restraint necessary where this was in Mustafa's best interests.

In light of AGNI, the Court was asked to consider whether Mustafa was still considered deprived of his liberty and whether he could validly consent to the arrangements in place.

The court concluded that Mustafa was not deprived of his liberty and that an extension of the deprivation of liberty order was therefore neither necessary nor proportionate.

In reaching that conclusion, the court found that Mustafa was generally happy in his placement and that, where restraint was required in his best interests, he was capable of providing valid consent in some circumstances. Alternatively, wider common law powers would permit the intervention. Neither situation amounted to a deprivation of liberty.

The court also concluded that, even where a child is not considered Gillick competent (that is, they do not have sufficient understanding and intelligence to consent to a particular decision), they may nevertheless possess sufficient understanding for their views to ‘be relevant as to whether they consent to aspects of deprivation of their liberty’ ([39]).

The outcome in Re Mustafa is not particularly surprising and appears to confirm the much-speculated narrowing of the circumstances in which a deprivation of liberty may be found for the purposes of Article 5 following AGNI. However, whilst both advocates in Re Mustafa noted that a written judgment would be a valuable resource given that Mustafa's circumstances are not uncommon, the High Court's decision should not be automatically treated as a blanket authority for similar cases.

A key feature of AGNI is its emphasis on a multi-factorial assessment, with the individual circumstances of each child remaining highly relevant. Practitioners should therefore exercise caution before assuming that comparable arrangements will fall outside the scope of Article 5.

Guidance from the Department of Health and Social Care is still awaited. At present, it remains unclear whether or not the Department for Education will also publish separate guidance addressing the implications of AGNI for education settings.

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