Practitioners, professionals, families with loved ones in the system and those supporting people who may be deprived of their liberty have all been working through the practical implications of the Supreme Court’s decision and judgement in The Attorney General for Northern Ireland’s Reference (Deprivation of Liberty) [2026] UKSC 16 over the last couple of months. Without clear guidance on how the multifactorial approach was to be applied in practice, there has inevitably been a period of uncertainty.
On 24 July 2026 Her Honour Judge Owens handed down the first reported judgment grappling with this issue and provided some greatly appreciated guidance on how the new multifactorial approach is to be applied.
The case concerned P, a 25-year-old woman with various diagnoses including a learning disability. P also had limited communication and had suffered childhood trauma. The crux of the contested hearing was whether it was in P’s best interests to remain at her current supported living placement, or return to live with her grandmother, G, with support. Natasha Perry and Saskia Fuchs represented G in these proceedings, and P was represented by the Official Solicitor acting as her litigation friend.
The court determined that it was in P’s best interests to remain living at her supported living placement whilst having regular contact with G. At this hearing, when considering the options, the court also helpfully considered whether or not P would be deprived of her liberty.
Helpfully, all parties agreed that when residing at the supported living placement, P’s living arrangements amounted to a deprivation of liberty when applying the multifactorial test. This position was endorsed by the court.
Supportive Living Placement
Objective Element
The court set out the restrictions that P was subject to which included:
- Locked external doors;
- Sensors on the front door of the placement and her bedroom door;
- Window restrictors;
- P not being free to leave the placement without supervision; and
- P requiring 35 hours of 1:1 support each week.
Her Honour Judge Owens initially indicated that these restrictions pointed towards the conclusion that P may be deprived of her liberty.
Her Honour Judge Owens explicitly considered the issue of ‘relative normality’ and the weight to be given to the prison paradigm. Whilst Her Honour Judge Owens accepted that P was allowed “some sense of relative normality because she can go on regular outings and attend local clubs”, given P is, “in reality, subject to ongoing supervision and unable to leave the placement without support in place”, she is “not able to exercise her autonomy freely…and thus may be deprived of her liberty notwithstanding that both placements are further removed from the paradigm of a prison cell identified in AGNI”.
Subjective Element (with some overlap)
As set out in detail at paragraph 18 of the judgment, there was a plethora of contested evidence in this case as to the reliability of P’s wishes and feelings, and the level of weight these wishes should be given when determining what was in her best interests. Her Honour Judge Owens noted that P “has said lots of different things to different people at different times”. By way of background, P often verbally expressed a wish to return to live with G, however, at other times had also expressed a wish to return to live with her parents, her grandfather and her advocate (all of which were not available options in this case). Her Honour Judge Owens asserted that whilst “there is considerable doubt about the extent of P’s understanding of ‘home’”, P had not verbally expressed a wish to remain at her current placement, and as such no inference of valid consent to her living arrangements could be drawn.
On this basis, Her Honour Judge Owens concluded that P was deprived of her liberty at her supported living placement.
A Move Home
Finally, Her Honour Judge Owens broadly considered whether P would be deprived of her liberty if she were to return to live at home with G. Her Honour Judge Owens asserted that on the facts, it was likely that these arrangements would meet the objective element of the multifactorial test as “objectively P is not free to leave … G’s house when she chooses and would be subject to a high level of supervision as evidenced by the proposed package of support”. However, Her Honour Judge Owens concluded that whether the arrangements would amount to a deprivation of liberty “would largely depend on P’s reaction if she were to move there.”
This judgment is a useful first indication of how the multifactorial approach can be applied in practice. In particular, it suggests that the court will continue to look closely at the reality of P’s day-to-day life: their level of supervision, whether P can leave freely, the extent to which P is able to exercise autonomy, and whether any apparent wishes can properly be understood as valid consent. It is also a helpful assertion that, even where arrangements look relatively ordinary or are far removed from the “paradigm” of a prison cell, that will not necessarily prevent them from amounting to a deprivation of liberty. The focus remains on the substance of the arrangements and the degree to which the person is, in reality, free to make and act on their own choices.
