Salford City Council v Re B: High Court Clarifies Child Deprivation of Liberty Test

What did the High Court decide?

In Salford City Council v The Mother, Father and B (A Child) [2026] EWHC 2789 (Fam), Ms Justice Henke concluded that B’s care arrangements did not amount to a deprivation of liberty for the purposes of Article 5 ECHR. Although the restrictions went beyond those ordinarily experienced by a nine-year-old child, the judge found that the arrangements, considered as a whole and in the context of B’s actual life, did not amount to confinement.

The court accepted the position advanced by the local authority and B’s Children’s Guardian. B was happy and content with her lived experience, regarded her kinship foster carer as her mother, and experienced the placement as her family home. The restrictions were directed towards protecting B and enabling her to participate safely in family, school and community life.

The judge held that Article 5 was not engaged, further court authorisation was not required, and the proceedings should be dismissed.

What were B’s care arrangements?

B was nine and had diagnoses of Autism Spectrum Disorder and Global Developmental Delay. She had complex behavioural, emotional and developmental needs, supported by a Behaviour Support Plan and an Education, Health and Care Plan. She lived with C, an extended family member and registered kinship foster carer, and C’s adult son, whom B regarded as her older brother.

B needed intensive supervision because her behaviour could escalate quickly and she did not consistently recognise danger. The arrangements included locked external doors and a garden gate, window restrictors, keypad locks to certain rooms, close adult supervision, and the possible use of reins or a secure buggy outside the home. A safe-space bed, sensor mat and motion alarm were also used to help manage risks at night.

At school, B received close adult support, including one-to-one supervision and, when required, two-to-one support. Staff could use physical intervention only as a last resort, following de-escalation attempts and subject to safeguards. B also received specialist respite support, with supervision tailored to her needs.

The judgment recorded that B enjoyed living with C and D, felt safe and cared for, and wanted her home life and familiar routines to continue. Her wishes and feelings formed part of the court’s assessment of her actual circumstances.

1. 30 October 2025 Salford City Council issued its application seeking permission to invoke the High Court’s inherent jurisdiction and authorisation of the proposed deprivation of liberty.
2. 28 November 2025 The court granted permission and made an order authorising the arrangements for a limited period.
3. 17 April 2026 The arrangements were reviewed and further declarations and authorisation were made.
4. 2 June 2026 The Supreme Court handed down its decision in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, referred to in the judgment as AGNI.
5. 7 July 2026 The High Court heard the application and considered the effect of AGNI on B’s circumstances.
6. 29 October 2026 The judgment was handed down remotely.

How did AGNI change the legal test?

The court considered Article 5 ECHR and the three elements identified in Storck v Germany: an objective element of confinement to a particular place for a not negligible period; a subjective element concerning whether the individual consented to that confinement; and whether the confinement is imputable to the state.

Before AGNI, the approach was commonly associated with the “acid test” set out by the Supreme Court in Cheshire West and Chester Council v P [2014] UKSC 19. In AGNI, the Supreme Court reconsidered the approach to deprivation of liberty and overruled Cheshire West. It confirmed that the assessment must be multifactorial and grounded in the specific situation of the individual.

The factors include the type, duration, effects and manner of implementation of the measures. No single factor is decisive. The objective and subjective elements may overlap, and the individual’s compliance, absence of objection, ability to express a view, the relative normality of the placement and the purpose of the restrictions may all be relevant.

The judgment emphasised that valid consent for Article 5 purposes is an autonomous concept. It is distinct from domestic legal capacity and from consent to waive Convention rights. A person who lacks legal capacity to decide where they live or what care they receive may nevertheless understand and accept their living arrangements sufficiently for their views to be relevant to the Article 5 assessment.

“The starting point for any analysis must be the child’s specific or ‘concrete’ situation.”

Henke J, setting out the principles applicable to children following AGNI.

The court also considered the position of a child living in a family setting. A child may be deprived of liberty in their own home or in the community. However, where a person lives in their own home in accordance with their wishes and feelings, that may make a deprivation of liberty less likely. The restrictions would need to be more severe or extensive to amount to such a deprivation.

What principles did the court set out?

Having reviewed the authorities, Henke J identified a number of principles to guide the assessment of whether a child’s care arrangements amount to a deprivation of liberty:

• Start with the child’s actual circumstances: the assessment must focus on the child’s concrete situation and lived experience.
• Consider restrictions as a whole: the nature and duration of the arrangements, their purpose, their effects and how carers implement them must be assessed both individually and cumulatively.
• Recognise the relevance of home and community settings: a deprivation of liberty can occur outside an institution, including in a family home, but the relative normality of the placement is relevant.
• Take account of age and normality without using a rigid comparator: age and the relative normality of the child’s circumstances are part of the multifactorial assessment. Each case turns on its own facts.
• Assess the child’s views carefully: a child without domestic legal capacity may still understand and express a meaningful view about their living arrangements. The weight given to that view will depend on age, maturity and awareness.
• Do not equate compliance with consent in every case: absence of objection may be relevant, but acquiescence will not always establish valid consent. Where there is serious doubt, no inference of valid consent should be drawn.
• A local authority cannot consent on the child’s behalf to state confinement: this applies where the child is subject to either an interim or a final care order.
• Seek independent judicial scrutiny where needed: if deprivation of liberty is obvious, or the position is finely balanced, the local authority should seek permission under section 100 of the Children Act 1989 to invoke the inherent jurisdiction and apply for authorisation.

The judgment also rejected the idea that the state can avoid Article 5 safeguards simply by relying on its own consent to arrangements involving confinement. The positive obligations under Articles 2 and 3 ECHR do not create additional grounds for detention beyond the exhaustive grounds set out in Article 5.

Why were the arrangements not a deprivation of liberty?

Henke J accepted that the restrictions on B went beyond the everyday restrictions experienced by most nine-year-olds. Reins, secure transport, locked areas and continuous supervision were significant measures. But the court did not assess them in isolation or treat their existence as automatically decisive.

The judge considered the context in which the measures operated. B experienced C’s home as her family home, loved C and D, and was happy with her living arrangements. She could move around the ground floor of the home, while locks restricted access to areas containing hazards. The sensor alarm and pressure mat alerted her carers if she left her bedroom at night; they did not confine her in the bedroom.

The supervision provided by C, with occasional assistance from D, arose from their enduring family relationship and enabled B to access activities and the community safely. The secure buggy was something B liked and helped her to go out. Reins were used to prevent her running into danger while allowing her to move around.

The judge also considered the school arrangements. B had been physically restrained on only three occasions in the preceding 12 months, each in response to an emergency and by appropriately trained staff. Physical intervention was a last resort, and B was not restrained at home.

Medication was also considered. Since May 2026, B had been prescribed melatonin and clonidine for inconsistent sleep. The evidence was that her sleep had improved and that the medication was being used to manage sleep, not to sedate her or control her behaviour.

Standing back and considering the concrete situation, the cumulative effect and purpose of the restrictions, the judge concluded that there was no confinement for the purposes of Article 5. The objective and subjective elements overlapped in the circumstances of this case. B was happy and content with her lived experience, and the arrangements did not amount to a deprivation of liberty.

What does the judgment mean for local authorities?

The decision provides guidance for local authorities, children’s services teams and practitioners dealing with restrictive care arrangements for children with disabilities or complex needs. It confirms that the presence of substantial safeguards or restrictions does not, by itself, answer the Article 5 question. The child’s actual experience and the combined effect of the measures must be examined.

Local authorities should record why each restriction is necessary, how it operates in practice, its effect on the child and whether it enables or limits the child’s participation in ordinary activities. The child’s wishes and feelings should be considered as part of the assessment, while avoiding any assumption that a lack of objection automatically amounts to valid consent.

The judgment also makes clear that a local authority cannot consent to a deprivation of liberty of a child in its care. Where the assessment shows that deprivation is obvious, or where the position is finely balanced, the authority should seek permission under section 100 of the Children Act 1989 to invoke the High Court’s inherent jurisdiction and obtain independent judicial authorisation.

For practitioners, the central message is that the Article 5 assessment must be practical, child-specific and evidence-based. The purpose of protecting a child is relevant, but it does not remove the need to consider the legal safeguards where the arrangements do amount to confinement.