Judgment Summary:
Title and Citation
Re AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2).
Date of Judgment Publication
04 September 2026, handed down by HHJ Simon Burrows.
Court
Court of Protection.
Legal Issue
Whether AR’s care arrangements amounted to a deprivation of liberty (a restriction on personal freedom) under Article 5 of the European Convention on Human Rights (ECHR), applying the new multifactorial test established in A Reference by the Attorney General for Northern Ireland of a Devolution Issue under Paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 [hereinafter ‘AGNI’].
Specifically, HHJ Burrows was asked to consider two issues:
- The nature of the contact which AR and his parents can enjoy;
- The previous occasions on which his parents were late or had cancelled contact, thus unsettling their son.
At paragraph 13, HHJ Burrows acknowledged that the parents and Local Authority “must work together to progress contact and to make it as fulfilling for AR as it can be.”
Background
AR is a 25-year-old man who suffers from a moderate-to-severe learning disability and autistic spectrum disorder, requiring supported accommodation with a 24-hour care regime to meet his daily needs. A dispute arose between the Local Authority (LA) and AR’s parents regarding his visitation arrangements. His parents wish to have more contact with him at their home, including unsupervised overnight stays. They believe that the LA does not value their place in his life, that they were being held responsible for his neglect and that the LA was ignoring AR’s wishes and feelings.
The Local Authority, however, maintained that AR requires a carer to be with him during waking hours to meet his needs as and when they arise.
Legal Test
The former ‘acid test’ - under which a person lacking mental capacity was deemed deprived of their liberty if they were under continuous supervision and control and not free to leave - was abolished in 2026.
In its place, in AGNI, the Supreme Court held that "The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects, and manner of implementation of the measure." - paragraph 53(i).
Outcome
HHJ Burrows was satisfied that AR lacked capacity to make decisions across all relevant issues: litigation, residence, care, contact, and entering into a tenancy, and other property and affairs matters. However, AR was not deprived of his liberty.
In applying the test, the Court found that AR’s circumstances did not amount to a deprivation of liberty under Article 5 ECHR. If the objective element of confinement had been met, AR would not have been able to give valid consent to it.
Important Note
This judgment is one of the first reported decisions following the Supreme Court's landmark ruling in AGNI. At paragraph 14, HHJ Burrows noted that we are still “...in the early days...”. Critically, HHJ Burrows noted that this judgment is not intended to give guidance for other cases, but it certainly marks a starting point for practitioners and the Courts.