Re AR: Court of Protection applies Supreme Court's revised deprivation of liberty test

The Court of Protection has delivered one of the first substantive rulings applying the Supreme Court's recent overhaul of the test for deprivation of liberty, finding that a young man with severe learning disabilities and autism, living in a supported placement with extensive restrictions on his daily life, is not deprived of his liberty within the meaning of Article 5 of the European Convention on Human Rights.

The case concerned a 25-year-old man, referred to as AR under a transparency order, who had lived with his parents for most of his life before moving into what began as respite care and has since become a more settled placement. The local authority and AR's litigation friend were broadly aligned on his continued residence there, but his parents sought greater, unsupervised contact, including overnight stays at the family home, a dispute HHJ Burrows described as reflecting the parents' sense that their role in AR's life was not being valued.

The wider significance of the judgement lies in its treatment of the Supreme Court's decision in A Reference by the Attorney General for Northern Ireland of a Devolution Issue [2026] UKSC 16, which overturned the "acid test" established in the 2014 Cheshire West decision. That earlier test had found a deprivation of liberty wherever a person was under continuous supervision and control and not free to leave, regardless of the setting or purpose of any restrictions. The Supreme Court held this approach failed to distinguish between a person confined in a prison cell and someone supported to live as independently as possible in their own home, and directed courts instead towards a broader, multifactorial evaluation.

Applying that approach, HHJ Burrows considered the nature of AR's placement, the purpose of the restrictions imposed on him, including continuous supervision, restricted access to the community, and physical redirection when necessary, and the relative normality of his circumstances judged against what would ordinarily be expected for someone with his level of need. The judge found the restrictions, although substantial, were protective rather than punitive, implemented through positive behaviour support rather than more restrictive intervention, and directed towards enabling AR to participate safely in daily life rather than confining him.

The judgement also grappled with the second limb of the Supreme Court's revised test, concerning whether a person without legal capacity can nonetheless give valid consent to their living arrangements for the purposes of Article 5, a concept the Supreme Court held is distinct from capacity under the Mental Capacity Act 2005. HHJ Burrows found that, while AR could express preferences and emotional responses, the evidence did not establish that he understood the nature of the arrangements sufficiently to amount to valid consent, though this did not affect the outcome given the finding on objective confinement.

On the contact dispute, the judge declined to order unsupervised or overnight contact at this stage, finding that no residential alternative to the placement was currently realistic, but left open the possibility of expanded contact, including visits to the family home, as trust develops between AR's parents and those caring for him. The local authority's proposal to fund an independent advocate for twelve months was welcomed as a safeguard, and the judge declined to direct a mandatory review hearing, indicating that any future dispute over the care plan could be brought back before the court as needed.