One of the first reported judgments to apply new AGNI deprivation of liberty test
Court of Protection, Health & Social Care, Local Government
India Flanagan has appeared in one of the first reported judgments to comprehensively consider the new multifactorial approach to deprivation of liberty following the Supreme Court’s landmark decision in AGNI.
The case
In Re AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2), HHJ Burrows considered whether AR’s care arrangements amounted to a deprivation of liberty under the new multifactorial test established in AGNI [2026] UKSC 16.
The Court found that AR’s circumstances did not amount to an objective confinement for the purposes of Article 5, for the reasons summarised at paragraph 65, and accordingly held that AR was not deprived of his liberty.
The Court also considered that, had the objective limb been met, AR would not have been able to give valid consent to a deprivation of his liberty.
At paragraphs 79–91, the Court considered the implications for AR’s Article 8 rights, given that he was not deprived of his liberty for the purposes of Article 5 and therefore was not subject to the consequent protections. The Court concluded that it was not necessary to order a review to protect AR’s Article 8 rights.
What this judgment means
The judgement is a useful and comprehensive example of how the Court has approached the multifactorial test in AR’s case (both in relation to the objective element, and the obiter comments in relation to the subjective element) and the factors the Court considered as relevant and applicable for AR. However as referenced at paragraph 14, the judgment is not intended to give guidance for other cases, given the test is multifactorial and fact-specific, and the multifactorial assessment set out in AGNI, needs to be applied to the specific circumstances of each case.
The judgment also highlights the need to consider the implementation of other protections for a protected party (P), for example in relation to P’s Article 8 rights, given that if P isn’t deprived, P will not be entitled to the automatic protections under Article 5.
India Flanagan, instructed by Hugo Hollingsworth at Manchester City Council, represented the Applicant Local Authority, Salford City Council.
Read the full judgment here.
Cornerstone on the Court of Protection Conference
India will be speaking at the Cornerstone on the Court of Protection Conference on Monday 14th September 2026, where our specialist team will examine the latest developments in Court of Protection law and their practical implications.
The conference will include seminars on:
- Deprivation of liberty post AGNI
- Managing contact in residential care
- Expert evidence on capacity, practice and procedure
- Transition cases: from children to adult services
- Case law update
