By Celia Kitzinger, 28th October 2026
The main issue before the court at this hearing (COP 20013994 on 27th October 2026) was a dispute as to whether or not the residence and care arrangements, agreed to be in the best interests of the young woman at the centre of this case (“BW”), amount to a deprivation of liberty under Article 5 ECHR.
According to the local authority, BW is not deprived of her liberty following AGNI[1], meaning that the current DOL authorisation due to expire at 11.59pm on the day of this hearing did not need to be renewed.
The Official Solicitor and BW’s sister disagree: both consider that BW is deprived of her liberty, and that the DOL safeguards need to remain in place.
It’s been a long-running case, active since December 2022, first before DJ Mullins and then, since October 2024, before HHJ Hilder[2]. It’s raised complex issues and has involved, as HHJ Hilder pointed out, “a considerable expense of public funds”. This was not a final hearing: it will be back in court for a review hearing in April 2027.
Capacity has already been determined across a wide range of decisions. BW has autism, “low adaptive functioning”, situational mutism (she communicates fluently and copiously in writing but not orally), and a history of significant trauma and attachment difficulties.
The court has determined that she lacks capacity to conduct proceedings, and to make decisions about her care and support, where she resides, her social media and internet usage, contact with others, her property and affairs, and her care plan. (BW disputes these determinations and says she has “capacity in everything”.)
Best interests has also been agreed. It’s common ground between the parties that BW’s current arrangements for residence and care are in her best interests. She lives in a self-contained flat as a tenant in a supported living service, with care commissioned by the applicant local authority as s.117 aftercare provision. There’s also a TZ-style care plan in place: family members can come and go without limitation, but potential sexual partners are subject to “Clare’s Law checks” (the Domestic Violence Disclosure Scheme) and so far two persons have not satisfied these checks so BW has not been permitted to meet with them.
At this hearing before HHJ Hilder, in person at First Avenue House, observers were able to access a remote link: the judge and legal representatives were in the physical courtroom. The local authority was represented by Jonathan Auburn KC of 11 KBW. BW was represented by Victoria Butler-Cole KC of 39 Essex Chambers through her litigation friend, the Official Solicitor, who instructed Leigh Day. BW’s sister acted as a litigant in person.
The hearing was initially listed for half a day in the morning of 27th October 2026 (a time when I was not available to observe it) – but I learnt from other observers in the lunch break that an oral judgment would be delivered at 3pm in the afternoon and that’s what I report on here, with thanks to the judge and staff for facilitating late provision of the link.
Local Authority’s position
HHJ Hilder summarised the Local Authority’s reasoning as to why BW’s residence and care arrangements do not amount to a ‘deprivation of liberty’, and are a long way from the paradigm case of the prison cell.
BW lives in her own flat as a tenant. She has exclusive possession, and she holds the key. She can and does exclude staff from entering, and although staff do have a key, it’s for emergency use only. BW can leave the building whenever she wishes, so long as she is accompanied by staff, and can also leave on her own in accordance with the “Going Out on My Own Agreement” (part of a “Support Reduction Plan”) which specifies where she can go, arrangements for keeping in touch with staff, and requires her to wear a tracking device and return by a curfew. In point of fact, she does not comply with this plan and leaves the building without staff. She doesn’t have a key for the main entrance but exits by setting off the fire alarm. She has travelled as far afield as Scotland and Wales – returning, with police escort, willingly and without restraint. That, say the local authority, is not objective confinement.
Since BW is not objectively confined, there’s no need to establish whether there’s valid consent. It’s true that she objects – but her objections are to Article 8 restrictions, and not to objective deprivation of liberty. She likes her flat. This is not like a prison and it’s not punitive. She can access the community every day: the restriction is only on how she does that.
Official Solicitor’s (and Sister’s) position
The Official Solicitor (with whom the sister agrees) takes a very different position.
They say that tracking devices and curfews are NOT hallmarks of normality – they are material indicators that BW is not at liberty. When she has strayed outside her permitted area, she’s dumped the tracker in a dustbin.
She is not free to leave the building when she wishes to because she doesn’t have fob or key access to the community door. When BW does not comply with the terms of the agreement, further restrictions are imposed. When she tried to leave by setting off the fire alarm, the staff obstructed the door.
The sister disputes the local authority’s claim that the key held by staff is used only in emergency and says staff do access P’s flat, using that key, for non-emergency reasons. She also notes that CCTV (which the local authority say is only in communal areas for collective security) is used to monitor BWs’ movements to prevent independent access to the rear garden and to the upper staircase (where some else lives).
Critically, BW objects to her living and care arrangements. The judge mentioned a long list of specified objections at §2(i) of the Official Solicitor’s position statement – which I don’t have access to and she decided not to read out.[3] I gathered, however, that BW describes the staff as her “jailors”, and her flat as a “prison” or “secure unit”: BW has spent time in a psychiatric hospital “and she says it’s not that much different”. The Official Solicitor had also drawn attention to the language in one of the protocol documents which refers to “absconding” –
“an unusual term to apply to a living arrangement that does not include deprivation of liberty”.
Insofar as BW appreciates some aspects of her flat, the Official Solicitor and Sister say this does not detract from the fact she does not want to live there and consistently says she wants to live somewhere else. She doesn’t want staff supervision and support – believing that she can live independently and she would prefer to do so. She would not want to live in her current accommodation if she had a choice. She does not want staff to vet her prospective sexual partners. She tells her sister, her legal representatives, and the court that she wants “the DOL” removed.
According to the Official Solicitor, this is a deprivation of liberty post-AGNI, but it would have been a deprivation of liberty even before Cheshire West: it would always have been a deprivation of liberty. It is, says the Official Solicitor, an “obvious” deprivation of liberty.
Why does it matter whether or not this is an Article 5 deprivation of liberty?
Before determining the issue, HHJ Hilder considered it constructive “to take a sideways step into considering what the point of this argument is”. The parties agree that care and residence arrangements are in BW’s best interests. They agree that the court should retain oversight, and that the matter should be listed for review hearing in 6 months time.
“What then is the significance of labelling it as a ‘deprivation of liberty’ or not?”, asked the judge.
The local authority had (said the judge) accepted that it made no difference to court oversight whether the court were to decide that there was ‘only’ an Article 8 restriction or whether BW was also deprived of her liberty. Preparation for the review hearing in six months time would be same either way, and the range of possible outcomes at that hearing would be the same. The judge concluded: “On that basis, in my view there is no substantive difference for BW today in terms of court oversight whether or not the arrangements are labelled ‘deprivation of liberty’. I leave to others any comment on the implications of that.”
The Official Solicitor and BW’s sister had been offered the opportunity to explore with the judge what difference there might be in terms of BW’s perception and the impact on her of the ‘deprivation of liberty’ determination. The judge had (she said):
“… canvassed the possibility that without the label there would be no deprivation of liberty, which would match her wishes. They were both very clear that absence of the label would not improve BW’s perception of things. When she says she wants “NO DOL”, she means none of these care arrangements. She could not understand the same care arrangements remaining without the deprivation of liberty label. This would only create more conflict and friction with staff.”
HHJ Hilder’s determination: Is this a deprivation of liberty post-AGNI?
I have tried to capture as accurately as possible what the judge said in arriving at her decision. She did make the point at the beginning of the afternoon that “oral judgments are necessarily less carefully crafted and less detailed” but said she was unable to provide a written judgment since Friday is her last sitting day.[4]
The judge started by citing a series of passages from the AGNI judgment.
- “The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question” (§53(i) AGNI)
- There is an overlap between the objective and subjective element so “the assessment of the objective element can take account of the specific context and circumstances of restrictive measures that are different from the paradigm of confinement in a cell” ((§53(iii) AGNI).
- The effect of restrictions on the individual is relevant to objective element. Both “relative normality of the placement” and “the purpose for which a measure has been taken” are factors to be considered (§53(iv) AGNI).
- The court’s approach “should be practical and realistic” (§ 53(5) AGNI).
- “The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance”. “Where there are a number of restrictions involved in the treatment of an individual, it is necessary to consider them cumulatively and in combination to assess their overall effect on the individual” (§119 AGNI).
- “The degree of understanding an individual in fact has regarding their circumstances, even though they lack legal capacity, is an important part of their concrete situation” (§123 AGNI)
- “If a restrictive measure is imposed with the aim of punishment or coercion against someone’s will, it will more closely approximate to the paradigm of imprisonment in a prison cell” (§ 130 AGNI – and §146 AGNI).
- The Supreme Court specifically recognised that deprivation of liberty could apply to someone living in their own home. “However, if an individual is living in their own home, in accordance with their wishes and feelings, it makes it less likely that the individual is being subject to a deprivation of liberty within the meaning of article 5” (§193 AGNI).
HHJ Hilder had considered the other published judgments post-AGNI, which the parties had put before her, and concluded they were “of very limited assistance. They are illustrative of how judges have seen other cases. They are not binding on me – and anyway two, I’m told, are subject to appeal”[5] She continued:
“So, I focus on the concrete situation for BW. I am absolutely certain that BW has a clear understanding of what her circumstances are. She has other experiences to compare it to. She can and does articulate something different. She understands the care package to be aimed at securing restrictions on her that she does not want. She may regard her flat as home in the absence of any other, but she’s not living there “in accordance with her wishes and feelings”. She’s adamant that she does not want to be ‘on a DOL’ – I accept submissions from the Official Solicitor and [her sister] that what she means is that she does not want to be in these care arrangements.
So, I’m in no doubt at all that there is an element of coercion in these care arrangements. Without them, it’s inevitable that she’d remove herself and put herself at risk of serious harm. In fact, it’s been demonstrated that she will remove herself even with these restrictions. She removes the tracking devices and comes back only under escort from the police. I am mindful of the overlap between objective and subjective elements. BW’s living arrangements do amount to confinement to a restricted space. She’s not at liberty to be able to leave when she can do so only with two carers in attendance, or only on 2 days a week, to limited destinations, with a tracking device and a curfew.
I am equally satisfied that BW is not giving valid consent. BW is objecting as loudly and frequently as her condition enables her to do. I agree with Ms Butler-Cole that this is not a marginal situation. This is the very exemplar of why the state is under an obligation to provide safeguards.
So, applying the AGNI multi-factorial test, in my judgment BW’s living arrangements do amount to a deprivation of liberty.
And in accordance with agreement between parties – and acceptance by this court – that those living arrangements are in her best interests, I will authorise that deprivation of liberty until the date of the next hearing.
That is the end of my judgment.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
Endnotes
[1] A Reference by the Attorney General for Northern Ireland [2026] UKSC 16
[2] I’ve watched four hearings (all since December 2024): many other hearings have been covered by other observers.
[3] I am grateful to have received a useful Case Summary and a Chronology (two of the so-called ‘Gardner documents’) but – as ever – these documents are not a substitute for understanding the substance of the legal arguments advanced by the parties (albeit that they were summarised in this case by the judge).
[4] I understand that the judge had offered the parties the opportunity to have the case deferred and heard by a Tier 3 judge who might provide a published judgment, but none of the parties pushed for this.
[5] These are: Re AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2) and Derby City Council v SM [2026] EWCOP 46 (T2)
Photo by 🇻🇪 Jose G. Ortega Castro 🇲🇽 on Unsplash
