The Court of Protection has ruled that an intensive residential care package for a 16-year-old autistic teenager with severe learning disability did not amount to a deprivation of liberty, despite continuous supervision, locked doors and 3:1 staffing.
What did the Court of Protection decide?
In Re BM (Deprivation of Liberty) [2026] EWCOP 48 (T2), dated 2 October 2026, His Honour Judge Burrows, sitting as a nominated judge of the Court of Protection at Tier 2, ruled that BM’s residential care arrangements did not amount to a deprivation of liberty.
The central issue was whether the restrictions imposed under BM’s care arrangements amounted to a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights.
The judge concluded that they did not. Although the restrictions were extensive and would previously have pointed strongly towards a deprivation of liberty, the court held that the assessment now required a broader, case-specific evaluation of BM’s concrete circumstances.
What was BM’s care arrangement?
BM, who was 16 at the time of judgment, has autism spectrum disorder and severe learning disability. The evidence also identified features associated with pathological demand avoidance, although there was no formal diagnosis of that condition.
His needs had become increasingly complex during his teenage years. By 2024 and 2025, he required substantial support at home, with supervision levels reaching 3:1 and 4:1 at different stages. Police intervention was occasionally required and incidents involving destructive behaviour occurred on a daily basis.
Following public law proceedings, BM moved into residential care in March 2025. The judgment records that he was initially extremely dysregulated and unsettled, but that his condition improved significantly during the placement.
- BM moved into residential care following an interim care order.
- A final care order endorsed the local authority’s permanence plan for BM to remain in residential care.
- Incidents reduced significantly and BM’s communication and relationships with carers improved.
- The care plan in evidence provided for a highly individualised residential placement and positive behaviour support plan.
- The Court of Protection ruled that the arrangements did not objectively amount to a deprivation of liberty.
The restrictions included continuous visual supervision, a minimum of 3:1 staffing around the clock, locked doors and windows, restrictions on leaving independently, dynamic risk assessments for community access and the possibility of physical restraint as a last resort.
BM nevertheless regarded the placement as his home. The evidence showed that he sought out his carers, participated willingly in activities, benefited from predictable routines and had developed meaningful relationships with those supporting him.
How did the new deprivation of liberty test affect the case?
The case was decided against the background of the Supreme Court’s judgment in the Northern Ireland case, which replaced the previous Cheshire West “acid test” with a more nuanced and multifactorial approach to deprivation of liberty.
Judge Burrows explained that the assessment could no longer be approached mechanically by looking only at the level of supervision and control. Instead, the court had to undertake a holistic evaluation of BM’s situation.
The factors considered included the nature of the setting, the purpose of the placement, the relative normality of the arrangements, whether restrictions were protective rather than punitive, and BM’s own experience of the arrangements.
The restrictions must be understood in the context of BM’s disabilities, the purpose they serve, the life they enable him to live, the relative normality of the arrangements for somebody with his needs and, importantly, his own experience of them.
Why did the court find no deprivation of liberty?
The judge accepted that the restrictions were highly intensive. Continuous supervision, 3:1 staffing, environmental controls and the possibility of restraint all weighed in favour of finding a deprivation of liberty.
However, the court found that those features could not be considered in isolation.
The restrictions were required because of BM’s significant disabilities and the risks associated with overstimulation, anxiety, absconding and difficulties communicating with unfamiliar people. The court considered that the restrictions did not merely protect BM or others from harm; they enabled him to live a life that he could experience as fulfilling and predictable.
The judge also placed significant weight on BM’s experience of the placement. Unlike cases in which restrictions were experienced as oppressive and actively resisted, BM regarded his placement as home, sought out his carers and willingly participated in activities.
The court therefore concluded that the arrangements were more accurately characterised as an intensive and highly individualised package of disability support than as confinement.
| Factor | Finding | Significance |
|---|---|---|
| Level of restriction | Extensive restrictions were accepted. | Weighed towards deprivation of liberty but was not determinative. |
| Purpose | Protective and enabling rather than punitive. | Supported the characterisation of the placement as disability support. |
| BM’s experience | BM experienced the placement as safe, predictable and supportive. | Weighed against a finding that the arrangements were oppressive. |
| Relative normality | The level of support reflected BM’s significant needs. | Supported the conclusion that the arrangements were appropriate to his circumstances. |
Judge Burrows ultimately concluded that, viewed as a whole, the arrangements did not objectively amount to a deprivation of liberty for Article 5 purposes.
What did the court say about consent?
The court also considered whether BM could have given valid consent to the restrictions, although the issue did not need to be determined once the court concluded that there was no objective deprivation of liberty.
Judge Burrows said that, had it been necessary to decide the point, he would not have found valid consent established. BM demonstrated contentment, attachment, trust and acceptance of his lived experience, but the evidence did not demonstrate sufficient appreciation of the restrictions themselves.
The judgment therefore distinguishes between being content with one’s circumstances and giving meaningful consent to the restrictions imposed within those circumstances.
Were BM’s Article 8 rights protected?
The court was also satisfied that BM’s Article 8 rights were protected. He remained subject to a care order and had a social worker, regular local authority meetings, an Independent Reviewing Officer and continued support under the statutory leaving-care framework.
The court therefore concluded that there was no need to impose a separate scheme of directions requiring the matter to return before the Court of Protection.
Frequently asked questions
What was the main issue in Re BM?
The main issue was whether BM’s highly restrictive residential care arrangements amounted to a deprivation of liberty under Article 5 of the European Convention on Human Rights.
What restrictions were imposed on BM?
BM was subject to continuous visual supervision, a minimum of 3:1 staffing, locked doors and windows, restrictions on leaving independently, dynamic risk assessments for community access and the possibility of physical restraint as a last resort.
Why did the court decide there was no deprivation of liberty?
The court assessed the arrangements holistically. It considered the purpose of the restrictions, BM’s disabilities and needs, the relative normality of the arrangements for him, and his own experience of the placement. The judge found that the arrangements were better characterised as intensive disability support than confinement.
Did BM give valid consent to the restrictions?
The court did not need to decide the issue because it found no objective deprivation of liberty. However, Judge Burrows said that, if the issue had been necessary to determine, he would not have found valid consent established.
Did the court consider BM’s wishes and feelings?
Yes. The court found that BM’s wishes and feelings could be ascertained to a significant degree regarding his lived experience. He regarded the placement as his home, enjoyed living there and had developed meaningful relationships with his carers. However, the evidence did not reliably establish his views about the legal restrictions themselves.