First Post-AGNI Decision On A 15 Year Old

The High Court's decision in Re Mustafa, the first reported post-AGNI case concerning a child, offers an important early indication of how AGNI's multifactorial approach to deprivation of liberty will operate in practice. The decision will be of particular interest to children's residential and education providers, addressing questions around valid consent, restraint and Article 5 safeguards.

Those questions arose in the context of an application by the Local Authority to withdraw an extension of Mustafa's deprivation of liberty order. The Court agreed with the application, although Mustafa's guardian “unusually” opposed it. The guardian argued that the frequency with which physical restraint was being used was inconsistent with Mustafa's rights under Article 5 of the European Convention on Human Rights and that the order should therefore remain in place.

By way of background, Mustafa has Prader-Willi syndrome, developmental delay and additional learning needs. He lives at a specialist residential school, where the deprivation of liberty order imposed a range of restrictions. These included constant supervision, locked doors, keeping the kitchen and sharp tools out of reach and permitting their use only under supervision, and providing one-to-one support at all times.

Against this background, the Local Authority submitted that, when Mustafa’s circumstances were considered as a whole under AGNI’s multifactorial approach, he was not deprived of his liberty.
But by contrast, the guardian argued that:

“…the frequency of restraint represents a regular pattern of the use of physical intervention to manage Mustafa’s behaviour of approximately every 9-10 days.”

The guardian considered that this pattern, together with an increase in the duration and intensity of incidents, might justify the continuation of the deprivation of liberty order.

The Court concluded as follows:

“When I stand back at look at all the factors relevant to the assessment as to whether there is a deprivation of liberty, in my judgment there is no deprivation of liberty. Mustafa is, as the Guardian sets out at length, generally happy in his placement. Where the school uses physical restraint, it either has Mustafa’s consent or it is entitled to use restraint under its common law powers. Either way, there is no deprivation of liberty such as to give rise to a violation of Article 5(1). An extension of the DOLs order is therefore neither necessary nor proportionate and I refuse to grant one.”

The Court also considered that a child who lacks Gillick competence may still be able to give still give valid consent to particular restrictions that might otherwise constitute a deprivation of liberty.

Unanswered questions following AGNI

Shortly before the Mustafa decision was published, the Nuffield Family Justice Observatory issued a paper examining deprivation of liberty for children and young people following AGNI. It emphasises the need for careful consideration when children and young people require high levels of care and restrictions on their liberty may be necessary.

The paper calls on the Department for Education to provide guidance on:

• specific, age-related questions about how a child’s competence to consent is to be assessed and on seeking children and young people’s wishes and feelings.
• the safeguards that are available to children and young people receiving care without their consent (which may differ depending on the range of settings in which they may be placed, including, for example residential homes and hospitals).
• the respective responsibilities and expectations for different professionals, including for those who are responsible for the scrutiny and oversight of care plans.

We’ll keep readers updated on further post-AGNI decisions.