A guide for headteachers, SENCOs, safeguarding leads and school staff
The Supreme Court's decision in the Attorney General for Northern Ireland Reference (AGNI) has created significant discussion across health, social care and education sectors. For special schools educating children and young people with complex needs, the judgment raises important questions about when restrictions on a pupil's freedom amount to a deprivation of liberty and what safeguards may be required. The decision marks a departure from the long-established Cheshire West approach and places greater emphasis on the individual's subjective experience and wishes.
In this guest blog for NASS, Kathryn Layzell, Partner at Stone King LLP, draws on her experience advising vulnerable individuals, families, trustees and schools, alongside Stone King's nationally recognised SEND practice, to explain the implications of the AGNI judgment for special schools and pupils with complex needs.
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Why does this matter to special schools?
Many special schools have pupils who require significant support to ensure their safety, wellbeing and access to education. Staff may be involved in measures such as:
- Close supervision throughout the school day
- Physical intervention where there is an immediate risk of harm
- Restricted access to certain areas of the school
- Individual transport arrangements
- High levels of support for pupils who cannot safely leave a classroom or site independently
Historically, concerns about deprivation of liberty have often been considered through the lens of the Cheshire West "acid test", which focused on whether a person was under continuous supervision and control and not free to leave. The AGNI judgment has changed that landscape.
What did AGNI change?
The Supreme Court concluded that the Cheshire West acid test was too rigid and did not reflect the approach taken by the European Court of Human Rights. Instead, the Court emphasised that any assessment of deprivation of liberty must consider both:
- The objective circumstances – the nature and extent of restrictions; and
- The subjective element – whether the individual is able to understand and genuinely consent to the arrangements.
The Court recognised that an individual who lacks mental capacity under domestic law may nevertheless have sufficient awareness to understand their situation and express their wishes and feelings. Where valid subjective consent exists, Article 5 of the European Convention on Human Rights may not be engaged.
Does this mean deprivation of liberty is no longer a concern?
Absolutely not.
The judgment does not give schools a green light to impose restrictions without scrutiny. Rather, it requires a more nuanced assessment of the child's circumstances and experiences.
Headteachers should remember that restrictions implemented for safeguarding purposes must still be:
- necessary;
- proportionate;
- regularly reviewed;
- the least restrictive option available; and
- clearly linked to the child's assessed needs.
Documentation remains crucial. Schools should continue to record the rationale for restrictive practices, evidence considered, and the views of the child and family wherever possible.
What about children and young people?
Importantly, the AGNI decision does not remove established legal protections for children.
The courts have previously confirmed that parental consent cannot automatically prevent a situation amounting to a deprivation of liberty where the objective features of confinement are present. This remains particularly relevant for children under 16.
For young people aged 16 and 17, the position is especially important. The Mental Capacity Act 2005 framework continues to apply, and where arrangements amount to a deprivation of liberty, appropriate legal authorisation remains necessary to ensure compliance with Article 5 rights.
Special schools should therefore avoid assuming that parental agreement alone resolves legal concerns regarding highly restrictive arrangements.
Practical questions for special schools
Following AGNI, school leaders may wish to revisit the following questions:
1. What restrictions are currently in place?
Consider:
- Continuous one-to-one supervision
- Locked gates or doors
- Controlled movement around the site
- Transport restrictions
- Physical intervention plans
- Seclusion or withdrawal arrangements
2. Why are those restrictions necessary?
Can the school clearly demonstrate that measures are required to protect the pupil or others from significant harm?
3. Have the child's wishes and feelings been explored?
The AGNI judgment places greater emphasis on the individual's subjective experience. Schools should therefore ensure that pupils' views are sought and recorded in a way that reflects their communication abilities.
4. Are restrictions regularly reviewed?
What may be appropriate for a pupil at one stage of their education may not remain justified indefinitely.
5. Is external advice needed?
Schools should work closely with:
- Local authority SEND teams
- Social care
- Educational psychologists
- Legal advisers
- Families and carers
Complex cases should be considered collaboratively and at an early stage.
What does AGNI mean in practice?
The key message for special schools is that deprivation of liberty assessments are likely to become more individualised. Rather than relying solely on a checklist of restrictions, professionals must now consider the pupil's understanding, wishes and subjective experience alongside the objective arrangements in place.
For some children and young people, particularly those who are content with, understand and accept the arrangements in place, the legal analysis may differ from what it would have been under the strict Cheshire West framework. However, safeguards for children remain robust, and schools should continue to exercise caution where significant restrictions are imposed.
Key takeaways for headteachers
- The AGNI judgment has moved away from the rigid Cheshire West acid test.
- Greater emphasis is now placed on the individual's subjective awareness, wishes and consent.
- Restrictions in schools must still be necessary, proportionate and regularly reviewed.
- Parental consent does not automatically prevent a finding of deprivation of liberty for children.
- Young people aged 16 and 17 continue to benefit from Mental Capacity Act safeguards and
- may require legal authorisation where arrangements amount to a deprivation of liberty.
- Schools should ensure robust record-keeping and multidisciplinary working when restrictive practices are used.
Final thought
Special schools exist to help some of the most vulnerable children and young people thrive. The AGNI decision should not be viewed as reducing protections. Rather, it reminds professionals that the voice, experience and wishes of the child are central to understanding whether restrictions amount to a deprivation of liberty. For school leaders, the challenge is to balance safety and support with respect for individual rights – ensuring that every restriction is justified, proportionate and truly in the child's best interests.
Stone King LLP is a NASS partner and trusted advisor to a range of specialist providers. This includes schools in the state-funded sector (such as community and foundation schools, multi-academy trusts, academies and free schools and special schools) and independent / non-maintained sector (including independent schools, independent special schools, s41 special schools and non-maintained special schools), and those with residential provision.
For more information and to get in touch, please visit: https://www.stoneking.co.uk/sectors/education-law/special-education-providers