Deprivation of liberty of young man “necessary, proportionate, lawful and in best interests”, Court of Protection rules

In ZZ (Deprivation of Liberty in the Public Interest) (No. 2) (Rev1) [2026] EWCOP 57 (T2) (29 October 2026), His Honour Judge Burrows concluded he was satisfied that the man’s deprivation of liberty was “necessary, proportionate, lawful and in [his] best interests”.

The case concerned the care and support arrangements for ZZ, a man in his twenties with a diagnosis of mild learning disability (LD), attention deficit hyperactivity disorder (ADHD) and possible obsessive compulsive disorder (OCD).

ZZ suffered sexual abuse as a child and has himself been convicted of sexual assault on a young family member, resulting in an Intensive Referral Order for 12 months and a Sexual Harm Prevention Order (SHPO).

ZZ became a looked-after child pursuant to s 20 Children Act 1989 in 2019. He was placed at a residential and educational setting that worked with children displaying sexually harmful behaviours.

Within that placement, ZZ continued to exhibit difficult and challenging sexualised behaviours.

As ZZ approached adulthood, he moved to a supported living placement in a self-contained flat in 2021.

The local authority applied in March 2022 to authorise ZZ's deprivation of liberty at the placement.

The application was transferred to the welfare pathway in July 2022 due to a material change in ZZ's circumstances, namely that he wished to enter into a relationship and engage in sexual relations with his girlfriend, TD.

At a hearing in June 2023, a psychiatrist gave oral evidence over two days. The judge had a separate meeting with ZZ, who then remained present in the hearing during the psychiatrist’s evidence.

The judge considered the written submissions from the parties and in his subsequent judgment made the following findings about ZZ's capacity: that he had capacity to make decisions about residence; engage in sexual relations; contraception, and to marry.

It was agreed ZZ lacked capacity to conduct proceedings; make decisions about care and support and internet and social media use. The judge determined he lacked capacity to make decisions about contact with others.

The local authority thereafter endeavoured to draw up a Re TZ compliant contact plan, but said ZZ's placement was going to serve notice, due to what it considered to be the serious risk he posed, if its staff were expected to put into operation a plan for ZZ to have sexual contact with his girlfriend, on or off the premises.

At the time of the present hearing, ZZ resided in a supported living placement where he received 24-hour support.

HHJ Burrows said: “He occupies a property under a tenancy held in his own name. The arrangements are intended both to meet his assessed needs and to manage risks identified by professionals.

“The current care plan provides for extensive restrictions. ZZ does not possess a key to his home. His movements in the community are supervised. His communications and relationships are subject to oversight and control. His access to technology and social media is restricted. His electronic devices are removed overnight. Various safeguards are in place concerning his contact with others and his activities in the community.”

Two key questions arose in the case: (1) was ZZ deprived of his liberty; and (2) in circumstances where the primary reason for the restrictions were to protect the public, was any deprivation of liberty to which he was subject justified?  

Considering the first question, HHJ Burrows said: “I am satisfied that the arrangements imposed upon ZZ are highly restrictive. Almost every aspect his life is regulated and controlled. There is supervision of his movements, his communications are monitored, his relationships with others are controlled. He is severely restricted in his use of technology. In short, he is unable to exercise the degree of personal autonomy that an ordinary adult in the community would normally enjoy.

“I do not consider these arrangements can properly be characterised as falling within the sphere of relative normality. Whilst regard must be had to ZZ's individual circumstances and needs, a substantial proportion of the restrictions are imposed because of the risk he presents to others and the need to protect the public. Their purpose is not solely to provide care and support. In that respect, the present case bears a close resemblance to Y County Council v ZZ [2013] EWCOP 463, in which Moor J recognised the relevance of restrictions imposed for the protection of others when considering whether a deprivation of liberty arose.”

HHJ Burrows observed that when dealing with the objective element of deprivation of liberty, he must consider how the restrictions imposed upon ZZ are experienced by him.

He said: “In other recent cases, much has turned on this since the NI case now requires the Court to focus on how P experiences the circumstances in which they are placed. There have been a number of Tier 2 judgments and one very recent exceptionally clear Tier 1 judgment (NHS Leicester, Leicestershire & Rutland ICB v AA (& others) [2026] EWCOP 56 (T1) (TJ Sharron) in which this is addressed.

“[…] The only Tier 2 judgment I will mention is that of His Honour Judge Tindal in TW v Worcestershire County Council [2026] EWCOP 54 (T2). At [55] when the Judge summarises his approach to the objective element he says this:

“In short, if someone actively objects to their placement - particularly if that leads to conflict and unhappiness, or even potentially physical restraint - there is clearly an element of coercion as they are being compelled to live somewhere they did not want to live, which points towards 'confinement'. By contrast, if someone is actively happy in their placement, that would not only point towards 'valid consent', it would also point against their being 'confined' at all because they would not experience any element of coercion. So, in MIG, MEG and Mustafa, it was their broad (if not unqualified) acceptance of their respective placements which underpinned their protective and caring purpose, 'relative normality' and lack of coercion, so they were not 'confinements' in the first place, even aside from the evident 'valid consent' to them. Likewise, in the more borderline case of AR, the absence of objection could not constitute AR's valid consent to the placement, but it weighed against his 'confinement'. In SM, objection was occasional and changeable, so could not itself change a placement that was not a deprivation of liberty into one that was. By contrast, in RF, clear and consistent objection pointed strongly towards 'confinement'. So, clear and consistent objection is not determinative but a significant factor: generally and in this case.”

HHJ Burrows continued: “ZZ falls somewhere between the different categories in Judge Tindal's classification. ZZ is in a position where life outside an institutional environment is a welcome one. It is clear he would rather be where he is than someone more restricted. This is also the situation in cases concerning those who are discharged from detention under the Mental Health Act 1983 (MHA), including those who are restricted patients placed on conditional discharges. They accept the new restrictions; but what option do they have? ZZ is in the same position. He knows that he is better off where he is than in a more restricted environment, and for that he is grateful. However, it is clear he would rather have greater freedom. For that reason, his position is closer to that of mere acquiescence rather than actual agreement.

“For all those reasons, I am quite sure he is objectively deprived of his liberty.”

Moving on to the subjective element, HHJ Burrows emphasised that “compliance, acquiescence and resignation should not be confused with consent”.

He said: “Even if ZZ possesses the ability to provide valid consent to these arrangements, for the reasons outlined above, I am not satisfied that he does in fact do so. Rather, he accepts the arrangements because he recognises that they presently exist and because he sees no alternative. That is not the same as giving genuine consent to them. The subjective element identified in NI is therefore established.”

Turning to the question of best interests, HHJ Burrows said he was “entirely satisfied” that the arrangements remained in ZZ's best interests.

He said: “The fact that the arrangements serve an important public protection function does not detract from their benefit to ZZ himself. It is plainly in his interests that he should be protected from reoffending, from exposure to criminal sanction and from the serious consequences that would inevitably follow were those risks to crystallise.

“In those circumstances I am satisfied that his deprivation of liberty is necessary, proportionate, lawful and in ZZ's best interests.”

HHJ Burrows approved the order and directed annual reviews of ZZ's deprivation of liberty.

Lottie Winson