Deprivation of liberty cases involving young people can be complex and emotionally challenging for families and professionals alike. These cases usually arise where a vulnerable young person requires a high level of care and supervision to keep them safe.
A deprivation of liberty occurs where a person is under continuous supervision and control and is not free to leave their placement or accommodation, or is subjected to an intense level of restriction that amounts to a dynamic, objective confinement, to which they do not validly consent. Following the recent Supreme Court decision of 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., we no longer look blindly at a single “acid test”, instead, we must evaluate the type, duration, effects, and purpose of the restrictions alongside the young person’s subjective feelings – this is called the ‘multi factorial approach’. Examples of where a young person may be deprived of their liberty may include locked placements, constant supervision, restrictions on contact with others, or physical intervention to prevent harm.
For children under 16, parents are generally able to consent to restrictions placed upon their child as part of the normal exercise of parental responsibility. However, the legal position changes once a young person reaches the age of 16.
The Mental Capacity Act 2005 and Young People
The Mental Capacity Act 2005 applies to young people aged 16 and 17 in England and Wales. The Act provides the legal framework for deciding whether a young person has mental capacity to make specific decisions for themselves.
A young person must be presumed to have capacity unless it is shown otherwise. If they are unable to understand, retain, use or weigh up relevant information because of an impairment of or a disturbance in the functioning of the mind or brain, they may lack capacity to make that decision.
If a young person does not have the mental capacity to agree to care arrangements that amount to a deprivation of liberty, their parents cannot agree to those arrangements on their behalf. In Re D (A Child) [2019] UKSC 42, the Supreme Court decided that parental responsibility cannot be used to authorise this type of restriction for a young person who lacks capacity to consent.
Crucially, however, following the Supreme Court’s 2026 ruling in the AGNI reference case, a lack of domestic mental capacity does not automatically mean a young person cannot give “valid consent” under Article 5 ECHR. If a 16 or 17-year-old is able to meaningfully express their wishes, possesses a basic understanding of their environment, and demonstrates they are content with their placement, they can be deemed to have given valid consent. In those circumstances, there is no deprivation of liberty, and court intervention may be unnecessary. Where a young person actively objects, shows distress, or cannot express a view, in these cases, approval must usually be obtained from the Court of Protection.
The Role of the Court of Protection
The Court of Protection makes decisions for individuals who lack capacity to make certain decisions for themselves.
For those aged 16 and 17 where a factual deprivation of liberty is established and valid consent is absent, the Court may authorise restrictions which amount to a deprivation of liberty where the arrangements are necessary and in the young person’s best interests.
The Court will consider:
- The young person’s wishes and feelings;
- Any risks they pose to themselves or others;
- Whether the restrictions are necessary and proportionate; and
- Whether there are less restrictive options available.
Applications are commonly made by local authorities where a young person has complex care, behavioural or mental health needs.
The Link with the Children Act 1989
Many young people involved in deprivation of liberty proceedings are also supported by children’s services under the Children Act 1989.
For example, they may be:
- Accommodated by the local authority under Section 20 of the Children Act 1989;
- Subject to a Care Order; or
- Receiving support due to safeguarding or disability-related needs.
Although the Children Act 1989 provides the framework for a child’s care and welfare, it does not automatically authorise a deprivation of liberty for young people. Separate authorisation from the Court of Protection or the inherent jurisdiction of the High Court, depending on the care setting, is often required.
How We Can Help
TV Edwards has experienced Court of Protection solicitors who advise and represent clients in deprivation of liberty cases involving young people. We understand that these proceedings are often legally complex and emotionally difficult for families and professionals alike. Our team provides clear, practical advice and sensitive, expert representation throughout the process, helping clients navigate these challenging cases with confidence.
