Leanne Jones acts for Lancashire County Council in Re BM (Deprivation of Liberty)

Leanne Jones acted for Lancashire County Council, instructed by the Local Authority Solicitor, in Re BM (Deprivation of Liberty) [2026] EWCOP 48 (T2). Following a remote hearing on 15 September 2026, judgment was handed down on 2 October 2026 by His Honour Judge Burrows, sitting as a nominated judge of the Court of Protection at Tier 2.

The court had one issue to determine: whether BM, a 16-year-old with autism spectrum disorder and severe learning disability, is deprived of his liberty in the circumstances in which his care is provided and where he lives. BM is a child subject to a care order and lives in a solo residential placement. The restrictions in place include a minimum of 3:1 staffing 24 hours a day, continuous visual supervision, locked doors and windows, and the use of physical restraint as a last resort.

The case applies the Supreme Court’s decision of 2 June 2026 in [2026] UKSC 16, which replaced the Cheshire West “acid test” with a “multifactorial and case specific, and therefore more nuanced, approach”. As the judge observed: “As recently as 1st June 2026, this would have been an entirely straightforward case.”

Leanne submitted on behalf of the local authority that BM is not deprived of his liberty and, in any event, that he was able to give valid consent to the restrictions.

The judge acknowledged that this was “a finely balanced case” and that the restrictions are extensive. However, he concluded that the arrangements do not amount to a deprivation of liberty for the purposes of Article 5. He found that similar levels of supervision were required within the family home and would have to be present wherever BM lives, that the restrictions serve a protective and enabling purpose and are not punitive, and that BM does not experience the arrangements as oppressive. In the judge’s words: “The restrictions are not just to keep him safe, they are there to enable him to live the best life he can.”

He concluded that, viewed as a whole, the arrangements “are more accurately characterised as an intensive and highly individualised package of disability support than as confinement.”

As the court found no deprivation of liberty, it was not strictly necessary to determine the issue of valid consent. The judge recorded that, had it been necessary, he would not have found valid consent established, observing that consent “cannot be reduced merely to contentment or compliance.”

The court was also satisfied that BM’s Article 8 rights are protected. He has a social worker, there are regular meetings at the local authority to review his care plan, the Independent Reviewing Officer remains involved, and he will continue to receive support under the statutory leaving-care framework. There was therefore no need for the court to put in place directions for the matter to come back before it.

Read the full judgment: https://caselaw.nationalarchives.gov.uk/ewcop/t2/2026/48