Mustafa (a child), Re

Whether a child is deprived of liberty under Article 5(1) requires a practical, multifactorial assessment of the child’s specific situation. The court must consider objective confinement and valid consent, together with the type, duration, effects and manner of the restrictions, their relative normality and purpose. Valid consent is autonomous: lack of domestic legal capacity, including lack of Gillick competence, does not by itself prevent the child’s understanding and acceptance from being relevant. Where consent is withdrawn, lawful school powers to use reasonable force may still apply. On the facts, the settled and positive placement, apparent acceptance and lawful restraint powers meant that there was no deprivation of liberty, so an extension of the order was unnecessary and disproportionate.

The local authority sought to withdraw an application for an extension of a deprivation-of-liberty safeguarding order concerning a child living full-time at a specialist residential school. The Guardian opposed withdrawal, relying on the frequency of physical restraint and arguing that the arrangements remained inconsistent with Article 5. The child had developmental and learning needs, was settled and happy at the placement, and expressed acceptance of it, although restraint was sometimes used.

The central issue was whether the arrangements amounted to a deprivation of liberty after A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, including the significance of the child’s consent and the school’s powers to restrain. The court also considered, without deciding, whether it could make an order under the inherent jurisdiction of its own motion after the applicant sought withdrawal.

1. Disposition. The application for an extension of the deprivation-of-liberty order was refused. The court held that no extension was necessary or proportionate.
2. Article 5(1). Applying A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, the court treated the assessment as multifactorial and practical. It required consideration of the child’s specific situation, objective confinement, subjective consent, the type and effects of the restrictions, their manner of implementation, relative normality and purpose.
3. Consent. The overruling in AGNI [2026] UKSC 16 of Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19 answered the submission, advanced by reference to Re C (A Child) [2016] EWHC 3473 (Fam), that only a Gillick-competent child could consent. A child lacking Gillick competence may still have sufficient understanding for their views and acceptance to be relevant. Consent may be withdrawn, including during restraint, but that does not determine the Article 5 question where restraint is otherwise lawful.
4. School restraint. Relying on FXS (through his father and litigation friend JLM) v Mulberry Bush Organisation Ltd [2026] EWCA Civ 415, the court held that schools may have common-law powers to use reasonable force or detention for pupil welfare, prevention of harm and good order. Section 93 of the Education and Inspections Act 2006 gives statutory effect to those powers without restricting powers available apart from the section.
5. Application. Mustafa was generally happy and settled in his placement. The restrictions were either accepted by him or capable of lawful implementation under the school’s powers. Accordingly, there was no deprivation of liberty giving rise to an Article 5(1) violation.
6. Procedural observations. The judge regarded submissions relying on Re NY (A Child) [2019] UKSC 49 as cogent, but left open whether the court could make a deprivation-of-liberty order of its own motion after withdrawal of the application. The judge observed that the Guardian might invite the Official Solicitor or another litigation friend to seek declaratory relief. A declaration might be more appropriate than an injunction, with possible trespass liability if authorisation were not obtained, having regard to Re SW and TW (Children: Human Rights Claim: Procedure) [2017] EWHC 450 (Fam).

Not stated in the judgment.