Background
Mustafa, who was approaching 16, has Prader-Willi syndrome, developmental delay and additional learning needs. He had lived full-time at a regulated specialist residential school since 2021 and was subject to a full care order. Existing deprivation-of-liberty orders authorised measures including locked external doors, continuous one-to-one support, supervision in the community and controls relating to food, medication and potentially dangerous objects.
The London Borough of Brent sought to withdraw its application to extend the latest order, contending that Mustafa’s arrangements did not amount to a deprivation of liberty under the Supreme Court’s decision in AGNI. Mustafa consistently said that he liked the school and appeared content with its arrangements. The Guardian agreed that most restrictions were accepted but opposed withdrawal because physical restraint had been used repeatedly when Mustafa became aggressive, destructive or at risk of harming himself or others.
The Court’s Holding
The High Court refused to extend the deprivation-of-liberty order. Applying AGNI’s multifactorial approach, the judge considered Mustafa’s specific circumstances, the nature and implementation of the restrictions, the relative normality of the placement, his expressed acceptance of it and the protective purposes of the arrangements. Standing back from all those factors, the court found that Mustafa was not deprived of his liberty for purposes of Article 5(1).
The court explained that valid consent under Article 5 is an autonomous concept and is not identical to domestic-law capacity or Gillick competence. It held generally that even a child who is not Gillick competent may possess enough understanding for the child’s views to be relevant to whether the child consents to restrictive arrangements; the court did not determine Mustafa’s Gillick competence. If Mustafa withdrew consent during an incident, the school could still potentially use reasonable force under its common-law powers, reflected in section 93 of the Education and Inspections Act 2006. Proper exercise of those powers would not generally breach Article 5. Because no deprivation of liberty was established, extending the order was neither necessary nor proportionate.
The judge left unresolved whether the High Court could make a deprivation-of-liberty order under its inherent jurisdiction on its own motion when the applicant local authority no longer pursued one. That procedural question was unnecessary to decide on the facts.
Key Takeaways
- Whether care arrangements deprive a child of liberty requires a practical, multifactorial assessment of the child’s actual situation; no single restriction is decisive.
- A child’s acceptance may be relevant under Article 5 even without a finding of domestic-law capacity or Gillick competence, although serious doubt precludes an inference of valid consent.
- Reasonable restraint lawfully used by school staff to prevent injury, property damage or disruption does not by itself establish an Article 5 deprivation of liberty.
Why It Matters
The judgment applies the Supreme Court’s post-Cheshire West framework to a common residential-school setting. It shows that locked doors, close supervision and recurring protective restraint must be evaluated together with the child’s understanding, expressed wishes, daily experience and the legal basis and manner of any intervention.
It also identifies, without resolving, an important procedural issue: whether the High Court may continue under its inherent jurisdiction and impose a deprivation-of-liberty order when the local authority that applied for it wishes to withdraw.