Why removal of the Cheshire West test will make my child less safe
Every single day, multiple times a day I check the doors and windows in my home. They need to be secure because my son does not yet fully recognise danger, and an unlocked door or window could become a route towards traffic, getting lost or serious harm.
We do not lock them to punish him or to exercise control over him. We do it because we love him, understand his needs and carry the responsibility for keeping him safe.
My son is growing up with these arrangements as part of his ordinary home life. As he becomes older, he may never see a locked door or window as unusual because it has always been there.
If somebody asks him one day whether he is happy at home, I believe he will say yes, because he is loved, safe and surrounded by the people and things he knows. He may even say that he is happy for the doors to be locked because, from his perspective, that is simply how his home works.
That is why the Supreme Court’s judgment on the Attorney General of Northern Ireland’s case (AGNI) and the revised ADASS prioritisation approach have stayed with me.
I do not experience this change only as a professional expected to apply a new legal test. I experience it as a mother who must consider what this change could mean for my own child when he becomes an adult, particularly if safety arrangements that have surrounded him since childhood are later interpreted as arrangements he has freely accepted.
In my professional role, I work with young adults with learning disabilities, autism and complex support needs who live in family homes, their own tenancies or supported-living arrangements.
Some require continuous supervision because of serious self-harm, impulsivity, vulnerability, limited awareness of danger or behaviour that can place them or others at immediate risk.
Doors may be locked, access to certain parts of the home may be restricted, and the person may be unable to enter the community without one or two carers accompanying them.
These arrangements are often necessary and compassionate, but they still mean that another person exercises considerable control over when the individual can leave, where they can go and whether they can be alone.
The law changed, but the practical questions remain
Before AGNI, the Cheshire West acid test gave practitioners a comparatively clear starting point: was the person under continuous supervision and control, and were they free to leave?
The Supreme Court has now replaced that approach with a multifactorial assessment of the person’s actual circumstances, including the type, duration, effect and manner of implementation of the restrictions.
The Court also held that a person may lack capacity to make decisions about care and residence under mental-capacity legislation while still being able to give valid consent for Article 5 purposes through a positive expression of acceptance or happiness.
The judgment took immediate effect across the United Kingdom, with no transitional period in which practitioners could continue relying on the former test.
The revised ADASS tool applies directly to deprivation of liberty (DoLs) prioritisation in hospitals and registered care homes, whereas DoLs in community settings is normally authorised through the Court of Protection.
However, the definition established by AGNI is not confined to institutional settings. Its reasoning will inevitably shape how local authorities, legal teams and social workers approach people living in supported living, their own tenancies and family homes.
The ADASS categories described in the revised DoLs tool include situations where a person is settled, shows no evidence of objection, experiences minimal negative effects from restrictions, or cannot exercise liberty because of their disability and shows no distress.
I understand why these factors are relevant and why councils require a way of identifying cases needing the most urgent response. ADASS itself describes its tool as an indicative guide and stresses that individual cases must be considered on their own facts.
My difficulty is not with prioritisation itself, but with what these apparently reassuring words may come to mean once they enter everyday practice.
What are we hearing when somebody says ‘I am happy’?
Several young adults I work with may tell me clearly that they are happy. They may say they are happy living at home, happy for the front door to be locked and happy for a carer to watch them throughout the day and night.
I have no right to dismiss their answers simply because they have a learning disability or because their lives involve risks that other people may not face. Their happiness may be entirely genuine, and their sense of safety, belonging and attachment to familiar people deserves respect.
The BASW Code of Ethics requires social workers to uphold dignity, support self-determination and promote participation. It also requires us to challenge unjust practice and ensure that restrictions on rights are justified.
Those principles cannot be separated into convenient parts, because respecting a person’s voice and examining the power surrounding that voice are both essential social work responsibilities.
However, when somebody tells me, “I am happy”, I still need to understand what question they believe they are answering. They may be saying that they love their home, trust their carers, feel safe within their routine and do not want to move elsewhere.
None of those answers necessarily tells me whether they understand the individual restrictions that operate within that home or whether they know that those restrictions would remain in place if they withdrew their agreement.
A person may know that the front door is locked without understanding that it is locked to prevent them from leaving alone. They may know that a carer stays close to them without understanding that they cannot ask the carer to go away and expect that request to be honoured.
They may say that they are happy to go outside with two members of staff while having no understanding that going outside alone is not an option available to them.
Understanding the words used to describe an arrangement is not always the same as understanding the power contained within it.
In practice, I keep returning to one question: what would happen if the person changed their mind? If they asked for the door to be opened, would it be opened?
If they asked the carer to stop watching them, would the supervision end? If they attempted to leave alone, would they be allowed to go, or would somebody redirect, follow or physically prevent them because the risk remained too high?
In many situations, the answer will understandably be that the restriction cannot stop. The person may have no awareness of traffic, may become lost within minutes, may experience life-threatening self-harm or may be exceptionally vulnerable to exploitation.
The restriction may therefore be necessary, proportionate and the only safe option available at that time. However, an arrangement does not become freely chosen merely because the reasons for continuing it are good.
Home, love and control can exist together
As a mother, I would find it deeply painful if a professional entered my home and viewed every safety measure as evidence that I was controlling or oppressing my son.
Professionals see a fraction of family life, while parents live with the risks every hour of every day. We know what can happen when attention slips, when a door is left open or when a familiar routine suddenly changes.
Families often carry this responsibility with inadequate support, interrupted sleep and the knowledge that one mistake could have devastating consequences.
At the same time, I would not want the love within our home to make my son’s rights invisible. A locked door is not less locked because his parents fitted the lock, and continuous supervision is not less continuous because it is provided by somebody who loves him.
The intention may be protection rather than control, but the practical effect remains that another person decides when he can leave, where he can go and how much privacy he can have.
Social work must be able to hold both truths without turning either families or disabled people into the problem. Families should not be treated as suspected jailers because they use necessary safety measures, but neither should home automatically be treated as a rights-free space where significant restrictions no longer require examination.
The purpose of independent scrutiny should not be to accuse loving families of wrongdoing. It should be to ensure that restrictions remain visible, proportionate and open to change as the person develops.
The danger within the word ‘settled’
“Settled” is a word used constantly in social care. It can describe somebody who feels secure, has developed trusting relationships and is receiving support that meets their needs.
It can also describe somebody who has stopped resisting because resistance has never changed the outcome.
A young adult may stop trying the front door because they know it will not open. They may stop asking to go out alone because the answer has always been no, or stop asking for privacy because the carer must remain within sight.
Over time, professionals may record fewer incidents, the provider may describe the person as stable and the care review may note that the placement is working well. The restrictions have produced the appearance of settlement, and that settlement may then be used as evidence that the restrictions have little effect.
That is the circularity I find hardest to accept. A person is prevented from leaving successfully, so there are no further attempts to leave. The absence of attempts is then taken as evidence that the person does not wish to leave.
The system creates the compliance and later relies on that compliance to conclude that the person is not confined.
This becomes particularly serious for people whose communication is expressed through behaviour rather than conventional language. Hitting a door, pushing a carer away, removing monitoring equipment, refusing personal care or self-harming may communicate pain, fear, sensory distress, trauma, frustration or an unmet need.
The same behaviour may also communicate an objection to what is happening around the person at that moment.
It would be wrong to treat every episode of distress as an objection to the person’s entire living arrangement. It would be equally wrong to describe it automatically as part of the person’s autism, learning disability or “challenging behaviour” without examining the context in which it occurred.
Behaviour does not arrive with a legal explanation attached, and a social worker cannot understand its meaning through one visit, one capacity assessment or one question about happiness.
What safeguarding reviews should have taught us
The Safeguarding Adults Review concerning Lola, a young woman with learning disabilities who lived with her family, found that agencies had relied too heavily on information from caregivers and had not always established Lola’s wishes, feelings and lived experience.
The review warned that, without sufficient professional curiosity, “the true quality of care remains hidden from agencies”. It also emphasised the need to hear the adult’s own voice, uphold Mental Capacity Act rights and remain alert to disguised compliance.
Lola’s case was not an AGNI case and should not be used to imply that family care is inherently unsafe. Its relevance is that it shows how easily professional reassurance can be built from partial information, particularly where the person is dependent on others and their own communication is difficult to access.
The review found that professionals sometimes sought permission from Lola’s mother rather than approaching Lola through the Mental Capacity Act framework and supporting her own participation.
The Second national analysis of Safeguarding Adults Reviews examined 652 reviews involving 861 people. It found poor risk assessment or management in 82 per cent of cases, shortcomings in mental-capacity practice in 58 per cent and an absence of professional curiosity in 44 per cent.
The analysis described professional curiosity as looking beneath surface appearances and identified cases in which behaviour that may have communicated distress was simply accepted as part of the person’s character or condition.
Those findings matter because we are now making apparent acceptance more legally significant within a system whose own reviews repeatedly show that we do not always understand what lies beneath the surface.
We struggle with mental-capacity assessments, fragmented information, pressure on time and the temptation to accept reassuring explanations. Against that history, “no evidence of objection” cannot safely become shorthand for meaningful agreement.
This is a political question as well as a legal one
I am not suggesting that the Supreme Court designed AGNI as a cost-cutting exercise or that ADASS created its tool to remove people’s rights. The legal judgment concerns the meaning of Article 5, while the ADASS tool responds to the practical reality of councils having to prioritise large numbers of applications.
Nevertheless, legal principles do not land in an empty space; they land in social-care systems facing limited resources, workforce pressures, legal backlogs and unequal access to advocacy.
The government has stated that AGNI is expected to result in substantially fewer people being considered deprived of liberty. It has also advised organisations to revise policies, procedures and workforce practice while further case studies and practical guidance continue to be developed.
In effect, the legal threshold changed immediately, while the detailed practice framework needed to apply it safely remained unfinished.
That creates a political risk. Categories originally designed to manage workload can become informal thresholds that determine whose rights receive attention.
The person who repeatedly fights, tries to leave or has a family member threatening legal action will remain visible, while the person who is quiet, dependent and described as settled may move further away from independent review.
The quiet person may be the one least able to make a complaint, request an advocate or imagine an alternative. Their lack of visible resistance makes the system’s work easier, but it should not make their liberty less valuable.
Human-rights safeguards are not only for people who can object in a way institutions readily understand.
The government’s Safe Care at Home Review recognised that adults receiving care at home may find it difficult to recognise or report harm because of their dependence on others.
It described disabled people and those with complex care needs as potentially facing particular vulnerability where they rely on others for physical, emotional or financial support.
That policy direction sits uncomfortably beside an approach that may remove Article 5 scrutiny where a person at home appears settled and does not object.
Authorisation did not mean that the care was wrong
Community DoL proceedings can be slow, repetitive and painful for families. A parent who has spent years preventing injuries and keeping their child alive may feel attacked when court papers describe them as depriving that child of liberty.
The language often fails to reflect the love, fear and responsibility behind the arrangement, and there is a strong case for making the process more respectful and proportionate.
However, the legal authorisation did not create the locked door or the supervision. It acknowledged that the restrictions already existed and required them to be independently examined.
Recognising a deprivation of liberty did not necessarily mean the care was poor, unnecessary or abusive; it meant that the level of control was serious enough to require lawful authority, representation and a route of challenge.
For some people, the court process may be the only time somebody outside the immediate care arrangement asks whether every restriction is still required.
Could the person have more privacy? Does the door need to remain locked at every moment? Could assistive technology reduce direct observation, or could a restriction introduced during an earlier crisis now be safely relaxed?
If AGNI means that fewer community arrangements receive Article 5 scrutiny, those questions do not disappear. They need another clear and independent place within the system.
Ordinary care reviews, best interests meetings and safeguarding processes are important, but they do not automatically provide the same right to challenge the lawfulness of confinement that Article 5 protects.
The gap I cannot ignore
I understand the principle behind AGNI. People who lack capacity under the Mental Capacity Act should not automatically be treated as incapable of expressing meaningful wishes about where and how they live. If a person tells me they are happy, I must hear them rather than replacing their voice with professional assumptions.
However, listening is not the same as recording one positive answer and ending the enquiry. I need to understand whether the person is happy with their home, their family or their carers, and whether they understand and accept each significant restriction within that arrangement.
I also need to know how their wishes are expressed when they are distressed and what would happen if their answer changed.
As a social worker, I do not want to impose unnecessary legal processes on people whose arrangements are safe, proportionate and genuinely accepted.
As a mother, I do not want professionals to enter our home and judge the safety measures we use without understanding why they are necessary.
Yet in both roles, I remain uncomfortable with the possibility that familiarity, dependence and the absence of visible resistance may be interpreted as consent.
When my son becomes an adult, I want professionals to respect his happiness and recognise the love within his home.
I also want them to remain curious about what he understands, how he communicates discomfort and whether restrictions that began in childhood remain necessary in their original form.
I want them to hear his yes, but I also want somebody independent to remain present in case he cannot make his no understood.
That is the gap AGNI leaves for me. It is the space between being safe and being free, between accepting care and understanding control, and between a life that feels normal and a life in which alternatives have never been available.
The law may eventually record that my son is settled, but as his mother and as a social worker, I will still need somebody to ask what that settlement means and whether every locked door still needs to remain locked.
This article has been written in a personal capacity, both as a social worker and as the mother of a child with SEND. These reflections are entirely my own and do not represent the views of my employer, any local authority or any organisation with which I am professionally connected. I have not included identifiable information about any person I support.