Deprivation of Liberty for 16 and 17-Year-Olds: A Care Staff Guide

For adults, the law on deprivation of liberty has just changed. For 16 and 17-year-olds, it is less clear. In June 2026 the Supreme Court replaced the long-standing "acid test" in the AGNI Reference, but commentators agree it did not deal with the earlier ruling in Re D about what parents can consent to. This guide explains what care staff can say with confidence, what remains open, and what to do when a young person's care arrangements may amount to a deprivation of liberty.

It is general information for care and healthcare staff, not legal advice. Where a young person under 18 is, or may be, deprived of their liberty, get advice from your organisation's legal team or the local authority before acting.

Why 16 and 17-year-olds are a special case

Young people aged 16 and 17 sit between two systems. The Mental Capacity Act 2005 applies to them, so a 16 or 17-year-old can be assessed as lacking capacity to make a particular decision, such as where to live. But they are also children in law, and the Deprivation of Liberty Safeguards (DoLS) only apply from age 18. If you work with younger people, our guide to Mental Capacity Act and DoLS training requirements covers the adult framework that this guide builds on.

The Liberty Protection Safeguards (LPS) were designed to apply from age 16, but they are not yet in force. Our Liberty Protection Safeguards guide explains where that stands. Until then, there is no administrative authorisation scheme for under-18s.

What the Supreme Court decided in AGNI

On 2 June 2026 the Supreme Court gave judgment in the AGNI Reference ([2026] UKSC 16). It overruled the Cheshire West "acid test" of continuous supervision and control and not being free to leave. In its place, courts and practitioners must now carry out a multifactorial assessment, looking at the type, duration, effects and manner of the restrictions.

The Court also made clear that a person can give valid consent to their living arrangements without having full capacity under the Mental Capacity Act. Commentary on the judgment describes this as requiring only that the person is aware of their surroundings, has a basic understanding of their circumstances and shows acceptance. The Nuffield Family Justice Observatory has noted that the ruling concerns 16 and 17-year-olds as well as adults.

What commentators say follows for young people

Legal commentary published after the judgment suggests that a young person may lack capacity to make a residence decision under the Mental Capacity Act, yet still be capable of giving valid consent for the purposes of Article 5 of the European Convention on Human Rights. If so, fewer 16 and 17-year-olds are likely to meet the threshold for a deprivation of liberty, and more may be found to be validly consenting.

These are practitioners' readings of the judgment, not a settled rule. Treat them as a direction of travel and check current advice for each individual young person.

What AGNI did not settle: Re D

In Re D (A Child) [2019] UKSC 42, the Supreme Court held that it was outside the zone of parental responsibility for parents to consent to the confinement of a 16 or 17-year-old, even where the young person lacked capacity. Summaries of AGNI by two chambers note that the judgment does not address Re D or the role of parental authorisation. The Nuffield Family Justice Observatory adds that further clarity is needed on when parents can consent to a child's confinement, and on how the child's own wishes and feelings are taken into account.

The practical message is that you should not assume a parent's agreement makes a restrictive arrangement lawful for a 16 or 17-year-old. Nor should you assume the old position is unchanged. This is an open question, and one reason to involve lawyers early.

How this affects day-to-day practice

• Record the young person's own view. What they say and do, whether they appear content or distressed, and whether they try to leave, are central to the multifactorial assessment. Make sure it is documented, not just remembered.
• Assess capacity decision by decision. Capacity to decide where to live is not the same as capacity to consent to being confined. Follow the principles in our guide to best interests decision-making.
• Review restrictions regularly. Locked doors, constant supervision, restricted contact and physical intervention all need a clear justification and a review date.
• Escalate early. If you think a restriction may amount to a deprivation of liberty, tell your registered manager and the placing local authority straight away.

Which legal routes exist for under-18s

Because DoLS do not apply to children, lawful confinement of a young person has generally needed a court or statutory route. The main routes are an order under section 25 of the Children Act 1989 for secure accommodation, an order under the High Court's inherent jurisdiction, or detention under the Mental Health Act 1983 where the criteria are met. Which route is right is a legal question for the local authority and its lawyers. It is not for individual care staff to decide.

What is still to come

Following the ruling, the Department of Health and Social Care has said that interim guidance is due by December 2026. Expect that guidance, and any court decisions that follow AGNI, to shape practice for young people. Check for updates rather than relying on any single summary, including this one.

Training and supervision points for services

Services that support young people with disabilities, autism, mental health needs or acquired brain injury should make sure staff understand three things: how capacity and consent differ, what counts as a restriction, and who to tell. Short scenario-based supervision sessions work well, because the borderline cases are the ones that cause harm. Our CPD hub lists professional development options for care and healthcare teams.

Frequently asked questions

Can a 16 or 17-year-old be subject to DoLS?

No. DoLS apply to people aged 18 and over. Lawful confinement of a younger person generally needs a court or statutory route.

Can parents consent to their 16 or 17-year-old being confined?

Re D said no, even where the young person lacked capacity. AGNI did not address Re D, so the position is not fully settled and should not be assumed to have changed.

Does AGNI mean fewer young people are deprived of their liberty?

Commentators think so, because valid consent no longer requires full capacity. That is an interpretation, and individual cases still need careful assessment.

Who should I ask if I am unsure?

Your registered manager, your organisation's legal adviser and the placing local authority. Do not wait for a review date if you are worried about a restriction now.

Learnsignal publishes guides like this to help care and healthcare staff keep their knowledge current. This one will be updated as the courts and the Department of Health and Social Care publish more.