The first in a suite of judgments post-AGNI (2026)* was handed down this week by The Honourable Ms Justice Henke. The judgment provides guidance when grappling with the wholesale changes in the legal test with respect to a child being deprived of their liberty. Janice Wills was representing the child through her Guardian and was led by Michael Jones KC and instructed by Temperley Taylor Solicitors.
RE B (A CHILD: COMPLEX NEEDS: DEPRIVATION OF LIBERTY)
Neutral Citation Number: [2026] EWHC 2789 (Fam)
Her Ladyship provides a clear exposition of the law as it now stands and the legal principles to be applied when undertaking the multi-factorial assessment to determine whether the child’s article 5 EHCR rights are engaged.
There is also a novel point raised by the Applicant local authority seeking to persuade Her Ladyship to depart from the decision of the Court of Appeal in J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478, and to allow a local authority to consent to restrictions upon children for whom they hold a care order on the basis that Re J was substantially based on Cheshire West 2014 and, following AGNI*, should no longer bind the court.
That proposition was opposed on behalf of the Guardian and was dismissed by Her Ladyship; Her Ladyship commenting
“To permit the State, in the form of the local authority, to consent to the confinement by the State of an individual would drive a coach and horses through the purpose of Article 5.”
Janice Wills is a member of the Family Department at 18 St John Street Chambers.
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