Re BM (Deprivation of Liberty): intensive 3:1 care not a deprivation of liberty after Supreme Court shift

A Tier 2 judge of the Court of Protection has ruled that a 16-year-old with autism and a severe learning disability is not deprived of his liberty, despite round-the-clock 3:1 staffing, continuous supervision and locked doors.

HHJ Burrows's decision in Lancashire County Council v BM (Deprivation of Liberty) [2026] EWCOP 48 (T2) is an early application of the Supreme Court's ruling of 2 June 2026 in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 (the NI case). That decision displaced the Cheshire West "acid test" in favour of a multifactorial, case specific evaluation.

The placement

BM lacks capacity regarding residence and care and lives in a bespoke solo placement under a final care order made in June 2025. Before entering care, support at home had reached 3:1 and 4:1, with daily incidents. Since the move, incidents have fallen sharply and he has formed trusting relationships with his carers.

The restrictions were not in dispute. BM is not free to leave and is continuously supervised by at least three staff, with locked doors and windows. Physical restraint is authorised as a last resort and was used three times in the preceding three months. He sees his parents weekly in the community with staff present. He has no mobile phone, is out of mainstream education and has little contact with peers.

A holistic evaluation

The local authority argued that there was no deprivation of liberty or, alternatively, that BM validly consented. Counsel for BM argued the opposite, pointing to the intensity of the restrictions and his isolation from the outside world.

The judge applied the considerations from his earlier decision in Salford City Council v AR [2026] EWCOP 45 (T2): the nature of the setting, the purpose of the placement, its relative normality, whether the restrictions are protective rather than punitive, and the relevance of objection, acquiescence and consent. He also noted the factors listed by Theis J in Essex County Council v MH [2026] EWHC 2328 (Fam). No single factor predominates.

HHJ Burrows accepted that the restrictions were very intensive and would, before the NI case, have led to a finding of deprivation of liberty. Limited contact with family and peers also weighed in the balance.

Against that, he found that the restrictions serve a protective and enabling purpose, keeping BM safe and giving him a life he can enjoy. Similar supervision would be needed wherever he lived. BM regards the placement as home, seeks out his carers and returns willingly after family contact. Unlike the young person in the Essex case, who resisted and repeatedly absconded, he does not experience the arrangements as oppressive.

Acknowledging that the case was finely balanced, the judge characterised the arrangements as an intensive and highly individualised package of disability support rather than confinement.

Consent and Article 8

Although unnecessary to the outcome, the judge recorded that he would not have found valid consent established. Consent cannot be reduced to contentment or compliance. Drawing on Re Mustafa (A Child) [2026] EWHC 2159 (Fam), he accepted that a person lacking capacity under the Mental Capacity Act 2005 may still understand enough to consent for Article 5 purposes. BM's evidence showed attachment, trust and acceptance, but not an appreciation of the restrictions themselves, placing him closer to Oxfordshire County Council v P & G [2026] EWCOP 33 (T2).

The judge was satisfied that BM's Article 8 rights are protected by the care order, his social worker, regular care plan reviews and an independent reviewing officer. No directions returning the matter to court were needed.