The Practical Implications for Children (0–15-year-olds): Cheshire West Overturned

Course Outline:

The Supreme Court's judgment in A Reference by the Attorney General for Northern Ireland (The AGNI Reference) [2026] UKSC 16 fundamentally alters how the law evaluates restrictive care arrangements and placements for children.

Prior to the AGNI Reference, if a child was in care local authorities were legally bound to make applications to Family Court or High Court for residential or educational placements where a deprivation of liberty would arise, applying the Cheshire West “acid test”. The AGNI Reference establishes that an individual's behavioural compliance, cooperative presentation, and a documented absence of active objection are central to determining ‘objective’ confinement, so the Supreme Court has altered the threshold for Article 5 ECHR engagement. For local authority children’s services, education providers, health providers and residential care settings this means that a significant number of vulnerable children  who are settled and cooperative in their placements may no longer require an application to Court.

However, removing judicial oversight introduces safeguarding vulnerabilities which will require robust statutory compliance with the safeguarding duties incorporated within the Children Act 1989 in England and the Social Services and Well-being (Wales) Act 2014 (SSWA) in Wales.
The concern being that a child’s or a parents passive acquiescence could be incorrectly interpreted as an "absence of objection," without independent judicial scrutiny. This creates a critical safeguarding blind spot where hidden coercion, institutional abuse, or chemical restraint can be inadvertently cloaked as a compliant placement. This directly compromises the authority's statutory duties to protect children from significant harm or those at risk of significant harm under the Children Act 1989 (England) or the SSWA 2014 (Wales).

Children aged 0-15 can be deprived of their liberty in many different ways:

• Secure accommodation orders under s.25 CA 1989
• Voluntary accommodation arrangements under s.20 CA 1989 whereby parents/carers with parental responsibility can provide consent
• Pursuant to a Care Order (s.31 CA 1989) with a Care Plan that advocates a DoL
• A DoL order made under s. 100 of the CA 1989 - with applications being made to the National DoLS List - in the Family Division of the High Court.
• Section 2 or Section 3 Mental Health Act A 1989
• The Legal Aid, Sentencing and Punishment of Offenders Act 2020 

With children 0-15 ‘individuals' with parental responsibility, i.e a parent, can consent to the DoL of a child, who lacks Gillick competence, on a voluntary consent basis, provided it is in the child's best interests  Re QX [2025] EWHC 745 . However, if there is a Care Order in place and the Local Authority share parental responsibility then an application must be made to the Family Court for a DoL order otherwise the LA would be ‘marking their own homework’. Re J [2025] EWHC 1690.

Following the AGNI Reference parental responsibility, Gillick competence of the child, valid consent or ‘absence of objection’ will more readily compete when considering DoL for a child.

This course delivers precise, legally compliant guidance on how the AGNI Reference applies to children. It provides professionals with a clear framework to determine when an application to the Family Court remains a statutory necessity, how to fulfil jurisdictional safeguarding duties, and how to document care plans and risk assessments  to ensure absolute legal compliance.

Critical Safeguarding and Compliance Challenges Addressed

Key Learning Outcomes:

By the end of this course, delegates will be able to:

• Evaluate highly structured settings and placements for children against the updated AGNI "prison cell paradigm," measuring the cumulative legal impact of continuous supervision, control, and physical boundaries.
• Determine precisely when a child’s circumstances under Sections 17, 20, or 31 require an application to High Court, Family Division for a DoL order.
•  Align all placement decisions with Child Protection duties under the Children Act 1989 (England) and the SSWA 2014 (Wales), ensuring that any removal of judicial oversight triggers a corresponding increase in local safeguarding monitoring.
• Train frontline teams to identify and record the full spectrum of a child ‘s resistance, accurately distinguishing between a restriction of movement and an active behavioural objection.
• Audit care arrangements to ensure that passive compliance driven by sedation, institutional fatigue, or fear is not mischaracterised as an absence of objection, executing immediate statutory safeguarding enquiries where hidden containment is suspected.
• Draft statutory assessments, risk assessments and care plans that explicitly capture robust, compliant evidence of the child or parents’ ‘cooperative presentation’ to withstand judicial, regulatory, and human rights challenges.