Mustafa (A Child) [2026] EWHC 2159 (Fam): A Robust Approach following “AGNI”

Following Madeleine Miller’s July Dekagram on A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 of the Northern Ireland Act 1998 [2026] UKSC 16, [2026] 2 WLR 1087 (“AGNI”), comes the first significant application of the AGNI principles in a Deprivation of Liberty Safeguarding (DOLs) case. Tabitha Barran writes about the judgment in Mustafa (A Child) [2026] EWHC 2159 (Fam) was handed down on 12 August 2026 following a hearing on 5 August 2026, before Mr Recorder Adrian Jack sitting as a High Court Judge.

The local authority, the London Borough of Brent, applied for permission to withdraw its application to extend a DOLs order first made on 17 June 2025 and most recently extended on 11 June 2026. Unusually, the children’s guardian opposed the withdrawal, arguing that the frequency of restraint used on Mustafa — approximately every 9-10 days — was inconsistent with his rights under Article 5 of the European Convention on Human Rights, such that the order should remain in place.

The Facts

Mustafa, born in 2010, has Prader-Willi syndrome, developmental delay and additional learning needs. In 2021 he moved to a specialist residential school where he lives full time, and in 2022 LB Brent obtained a full care order. The DOLs order permitted confinement including locking all doors to the main road to prevent absconding, 1:1 supervision at all times (with 2:1 supervision if deemed necessary), and the use of force and restraint provided always that the measures were: (a) the least restrictive of the child’s rights and freedoms; (b) proportionate to the anticipated harm; (c) the least required to ensure the child’s safety and that of others; and (d) respectful of the child’s dignity.

All parties accepted that Mustafa was settled at the placement: he attended school, engaged in activities, had peer relationships and enjoyed regular family contact. The Recorder described “a young person who is integrated into his placement rather than isolated from it” [paragraph 5a]. Mustafa described himself as happy living at school, spoke positively about staff and peers, and had never expressed a wish to leave or move elsewhere. He had made significant progress in all areas. Physical intervention was used only as a last resort, the school operating a restraint reduction plan using strategies such as de-escalation, predictability and allowing him time and space to regulate.

Consent

The local authority argued that Mustafa was able to provide valid consent: he possessed a sufficient level of awareness and understanding to know whether he was happy or unhappy with his living arrangements and to communicate that view. He could identify what he liked about school, describe his relationships with staff and peers, discuss his activities and future aspirations, and had requested additional overnight stays at home. Crucially, the local authority argued, “Mustafa was not merely acquiescent. He routinely expresses preferences, disagrees with decisions, negotiates with adults and communicates dissatisfaction when he does not agree with something” [paragraph 5g]. Applying “the multifactorial test mandated by [AGNI], Mustafa is not deprived of his liberty” [paragraph 8].

The guardian agreed that the majority of the restrictions did not amount to coercion and that Mustafa consented to them and understood they were needed to keep him safe. However, the guardian considered that Mustafa may be accepting the restrictions as part of his overall care arrangement, making it difficult to know whether his acceptance was compliance or valid consent; the regularity of the use of restraint every 9-10 days “may” lean to the necessity to renew the DOLs order.

The judge referred to a similar argument raised before him that week: that a child or young person can give valid consent to being deprived of their liberty only if they are Gillick competent (Re C (A Child) [2016] EWHC 3473 (Fam), [2017] 2 FLR 875, applying Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112). It was submitted that apparent consent given by a child was likely to be insecure, not of an enduring nature and likely to be revised and retracted, so a local authority should apply for authorisation even where the young person had given consent, with the consent forming part of the court’s evaluation of whether authorisation should be granted (Re T (A Child) [2021] UKSC 35, [2022] AC 723).

The Law and Judgment

The judge set out Article 5(1) ECHR and the relevant principles from AGNI at [53]. The starting point in assessing whether someone has been deprived of liberty is the specific situation of the individual concerned; the assessment is multifactorial, taking account of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question, and no single factor is determinative. In addition to the objective element of confinement in a restricted space for a significant period, an individual will only be deprived of liberty if, as an additional subjective element, they have not validly consented to the confinement. Valid consent is therefore a powerful factor. It is an autonomous concept, not to be equated with legal capacity in domestic law: the fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean they are de facto unable to understand and consent to those arrangements. On the contrary, an individual without legal capacity who is conscious of their environment and has a basic understanding of their living circumstances, such that they can express their view and manifest acceptance of their situation, should have their opinion respected in the assessment.

The objective and subjective elements overlap. The requirement to take account of the “type” and “effects and manner of implementation” of the measure means the objective element can reflect restrictive measures different from the paradigm of confinement in a cell. The effect of restrictions — including compliance, and the lack of objection or tacit agreement where the individual is capable of objecting — is relevant to the objective element, as are the relative normality of the placement and the purpose for which a measure has been taken. The court recognised that the assessment is no easy task, especially in borderline cases, and that it may be difficult to ascertain the true feelings of vulnerable individuals; the approach should be practical and realistic, and where there is serious doubt, no inference of valid consent should be drawn.

The judge noted that in AGNI the Supreme Court had overruled Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19, [2014] AC 896, which had held that a lack of mental capacity to consent to care arrangements equated to a lack of valid consent. Since AGNI, the degree of understanding forms part of the multifactorial assessment. This overruling of Cheshire West was, in the judge’s view, the answer to the submission that valid consent can only be given by a Gillick competent young person: “A child who is not Gillick competent may nonetheless have sufficient understanding for their views to be relevant as to whether they consent to aspects of deprivation of their liberty” [paragraph 39].

Addressing the guardian’s concern that Mustafa’s apparent consent might be compliance rather than valid consent, and might be insecure and liable to be withdrawn, the judge referred to FXS (through his father and litigation friend JLM) v Mulberry Bush Organisation Ltd [2026] EWCA Civ 415, [2026] 3 WLR 147. Popplewell LJ had noted that the right of teachers to use force against, or to detain, a pupil where there were reasonable grounds for believing it necessary for the welfare of the child or other children was established in the nineteenth century in cases based on teachers being in loco parentis, and that these common law powers were given statutory effect in section 93 of the Education and Inspections Act 2006. On this basis, the judge concluded that even if Mustafa withdrew his consent, the school could nonetheless restrain him under its common law powers: “In general there will in my judgment be no breach of Article 5(1), if the school is properly using its common law powers of restraint.”

Standing back and weighing all the relevant factors, the judge determined that there was no deprivation of liberty giving rise to a violation of Article 5(1): Mustafa was happy in his placement, as accepted by all parties, and where the school used physical restraint it either had his consent or was entitled to restrain him under its common law powers. The extension of the DOLs order was therefore neither necessary nor proportionate, and the judge granted the local authority permission to withdraw its application.

Discussion

This decision is the first significant application of the principles established in AGNI to DOLs cases, and it does not pull any punches. The judgment is clear that, following AGNI, the Cheshire West “acid test” no longer applies, and that a child or young person does not need to be Gillick competent to give valid consent in DOLs applications post-AGNI.

By referencing the Court of Appeal decision in FXS v Mulberry Bush Organisation Ltd, the judge raised an interesting and somewhat novel point in the field of Deprivation of Liberty Safeguarding Orders: the right of schools to use restraint and detention as established by the common law in the nineteenth century and later by statute. In conclusion, the decision is nothing if not a robust implementation of the principles established in AGNI, with the “belt and braces” of the school’s common law powers of restraint seemingly recalled to active service from a bygone era. It is the first reported decision in a DOLs case post-AGNI, but is unlikely to be the last.