Child not deprived of liberty in case where restrictive measures “enable and protect” him, High Court rules

In (D) (A Child with Complex Needs: Deprivation of Liberty), Re [2026] EWHC 2846 (Fam), Mrs Justice Henke found, on the balance of probabilities, that the child was “content with his circumstances” and the restrictive measures in place.

She said: “In this case the objective and subjective elements of Storck overlap. On the facts before me, for the reasons given, I have decided that D is not being deprived of his liberty. Accordingly, the application is dismissed.”

The case concerned D, who is in the care of the local authority, a final care order having been granted when he was 5 months old.

He has diagnoses of ASD, foetal alcohol syndrome with frontal lobe impairment, mild cerebellar dysplasia and global developmental delay, and he is undergoing assessment for ADHD.

The judge noted: “D has very limited verbal communication. He is doubly incontinent and requires full support across all areas of his day-to-day living.”

D attends a specialist school which provides education in a structured, supervised setting.

By reason of his diagnosis, D is restricted within his home and within his respite placement. He requires constant supervision within the home and the community. D will attempt to leave his home if doors and windows are not kept locked.

The restrictive measures and supervision arrangements were described in the evidence as follows:

1. 1:1 supervision for D at all times when he is in the community.
2. 1:1 supervision at all times within the home.
3. 1:1 supervision at all times within the respite placement which D attends for one weekend a month.
4. Doors and windows in the home and the respite placement to be locked.
5. D is taken to school and returned home each day by school transport, accompanied by an escort.
6. 1:1 supervision at all times while D is at school.

By application issued on 30 June 2026, the local authority sought the court’s permission under section 100 of the Children Act 1989 to invoke the inherent jurisdiction and, if permission were granted, sought an order authorising D's deprivation of liberty for a period of 12 months.

On 8 July 2026, the application came before Recorder Rhys Taylor sitting as a Deputy High Court Judge in the Deprivation of Liberty List.

However, given the recent judgment of the Supreme Court 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 [AGNI], Recorder Taylor listed the application before Henke J and directed full skeleton arguments.

On behalf of D, it was argued that under the pre-AGNI case law, D's situation would amount to a confinement. Further, it was submitted that D cannot consent to that confinement.

Considering the application, Henke J observed that D does not have legal capacity, nor is he Gillick competent.

She added, however: “I remind myself that consent for the purposes of Article 5 is distinct from legal capacity and the concept of Gillick competence. A child who does not have legal capacity may nevertheless understand their living arrangements and may be able to express a meaningful view about them.”

D was described by his social worker as an “escapee”. If doors and windows are unlocked, he will try to get out. He has no appreciation of danger.

Henke J said: “[D’s] motivation cannot be established with certainty. I have therefore considered whether those attempts are an expression of a wish to leave his foster home or respite placement, rather than simply exploratory behaviour. Having considered the evidence as a whole, I find the latter explanation more probable: his attempts are more likely to reflect curiosity and a lack of inhibition. That finding does not remove the need to consider the actual effect of the measures which prevent him leaving unaccompanied.”

Continuing her analysis, she said: “I stand back and consider D's concrete situation and the nature, cumulative effect and purpose of the restrictive measures to which he is subject. In my judgment, D's lived experience is far removed from the paradigm deprivation of liberty, namely detention.

“The reality of D's life is that his liberty is restricted by his autism and his learning disability. The purpose of the restrictive measures is to enable D and protect him. D does not see danger and thus needs to be kept safe. He needs constant supervision, but that supervision is there to protect him and ensure his daily needs are met. With supervision, D can access the community safely; without it, he would be extremely vulnerable and at risk of harm. The locks on the doors and windows prevent D from leaving unaccompanied; with supervision, he can go out safely. Whilst I have set out that the Guardian tells me it is difficult to know whether D is happy with his restrictions because of his autism and profound needs, her evidence is not the only evidence I have about D's happiness and contentment with his circumstances and the restrictions. I also have the evidence of the social worker and the views of the IRO and D's foster carer.

“Looking at that wider canvas, I find, on the balance of probabilities, that D is content with his circumstances and the restrictive measures in place. I have considered his attempts to leave when doors or windows are unlocked as well as the absence of a verbal objection. […] I do not interpret the attempts to leave as an expression of opposition to his living arrangements.”

She found that in this case, the objective and subjective elements of Storck overlapped.

Dismissing the local authority’s application, Henke J concluded that that D is not being deprived of his liberty.

Lottie Winson