top of page
Search

Liberty, and Who Can Take It Away

Writer: Charley Bickers
Charley Bickers
2 days ago
8 min read

The state can lawfully take someone's liberty: by arrest, by court order, in care. Article 5 says when, and what safeguards must follow.

Edition 4, first published 21 October 2026.

Yesterday, in Edition 3, I wrote about the one right that can never be balanced away. Article 3 has no exceptions.

Today’s right is built differently. Liberty can be taken away lawfully. The police arrest people. Courts send people to prison. Care homes and hospitals keep some adults where they are for their own safety, and courts sometimes authorise locking a child in.

Article 5 doesn’t pretend that never happens. It asks harder questions. Who can take your liberty? On what grounds? And who checks?

What the right says

Article 5(1) of the European Convention on Human Rights opens:

“Everyone has the right to liberty and security of person.”

It goes straight on: “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”. The list is short. It includes detention after conviction; detention “for non-compliance with the lawful order of a court”; arrest on “reasonable suspicion of having committed an offence”; “the detention of a minor by lawful order for the purpose of educational supervision”; and the detention of “persons of unsound mind” (the language of 1950).

Then come the safeguards. Anyone arrested must be told “promptly, in a language which he understands” why (Article 5(2)). Anyone held on suspicion of an offence must be brought “promptly” before a judge (Article 5(3)). Everyone deprived of their liberty can ask a court to decide “speedily” whether it’s lawful (Article 5(4)). And anyone detained in breach of Article 5 has “an enforceable right to compensation” (Article 5(5)).

What it means in plain English

Article 5 protects physical liberty: being free to go. If a detention doesn’t fit one of the listed cases, it’s unlawful, however good the intentions. Even when it does fit, it must follow a procedure set by law, with a way to put it before a court.

And it isn’t only about police cells. It can cover an older person with dementia in a care home, or a teenager in a locked children’s home.

In P v Cheshire West and Chester Council [2014] UKSC 19, the Supreme Court looked at three people who lacked the capacity to decide where to live. Lady Hale said that what it means to be deprived of liberty “must be the same for everyone, whether or not they have physical or mental disabilities”. Comfort makes no difference: “A gilded cage is still a cage.” The majority set the “acid test”: was the person “under continuous supervision and control” and “not free to leave”?

That test has now gone. On 2 June 2026, in a reference from Northern Ireland ([2026] UKSC 16), the Supreme Court unanimously overruled Cheshire West. The acid test, it said, “has never been adopted by the European court and is wrong in principle”. Courts must now look at the whole situation, including “the type, duration, effect and manner of implementation” of the measures. And someone who lacks legal capacity can, in some cases, give valid consent through their own wishes and feelings.

The government’s guidance says this is “likely to reduce significantly the number of deprivation of liberty authorisations”. Whether that’s progress depends on whether the people affected are still protected.

The safeguards for adults, and the reform that hasn’t arrived

For adults who lack capacity and are deprived of their liberty in a hospital or care home, the authority comes from the Deprivation of Liberty Safeguards (DoLS), in Schedule A1 to the Mental Capacity Act 2005. A standard authorisation lasts a year at most, and it can be challenged in the Court of Protection (section 21A). In other settings, a court must authorise it.

In 2019 Parliament legislated to replace DoLS with the Liberty Protection Safeguards. They have never been brought into force. In April 2023 the government of the day delayed them “beyond the life of this Parliament”. In October 2025 the government promised a consultation in the first half of 2026. It hasn’t been launched. In October 2026, the Department of Health and Social Care said it was “assessing the implications of the Supreme Court judgment” and would “set out our plans as quickly as possible”.

Seven years after Parliament acted, families and care staff still don’t know which system they’ll be working with.

How it applies to children and in the Family Court

Secure accommodation. Under section 25 of the Children Act 1989, a child looked after by a local authority can’t be placed in accommodation “provided for the purpose of restricting liberty” unless they have a history of absconding and would be likely to suffer significant harm if they ran away, or would be likely to injure themselves or others anywhere else. A court must decide whether those criteria are met. It can’t act unless the child is legally represented, or has been told of the right to apply and had the chance. (Parliament has passed changes to section 25 in the Children’s Wellbeing and Schools Act 2026. They aren’t in force yet.)

When there is no secure place. There aren’t enough places in approved secure children’s homes. In Re T (A Child) [2021] UKSC 35, T was 15 and in care. No secure place was available, so the local authority asked the High Court to use its inherent jurisdiction, its long-standing power to protect children, to authorise depriving her of her liberty somewhere else.

The Supreme Court unanimously held that this can be lawful, but only as a last resort. Lady Black said it was “unthinkable that the High Court, with its long-established role in protecting children, should have no means to keep these unfortunate children (and others who may be at risk from them) safe from extreme harm”. But the power is for cases where “there is absolutely no alternative, and where the child (or someone else) is likely to come to grave harm if the court does not act”.

Lord Stephens spoke of “the enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation”. He called it “a scandal containing all the ingredients for a tragedy”. He also linked it to the last two editions: such a placement may be required where the state’s duties under Articles 2 and 3, to protect life and prevent inhuman or degrading treatment, are engaged.

The rights work together. A child’s liberty can be limited to keep them safe, but only lawfully, only when there’s no alternative, and only with a court watching.

Committal for contempt. Liberty can also be taken from a parent. Breaching a family court order, such as a non-molestation order or a child arrangements order, can be contempt of court, punishable by prison. Article 5(1)(b) allows it.

The safeguards are strict. Under Part 37 of the Family Procedure Rules 2010, the person accused must be told of their right to a lawyer, and that legal aid “may be available without any means test”. They have the right to remain silent. The court can find contempt only if “satisfied beyond reasonable doubt”. Hearings are in public unless the court directs otherwise. And committal is for no more than two years (Contempt of Court Act 1981, section 14).

Those rules are the same for a mother and a father. An order that protects a child, or a child’s relationship with a parent, deserves the same respect whoever is asked to obey it. And the same fairness is owed to whoever is accused of breaking it.

Why it matters for equality, children and policing

“Everyone has the right to liberty.” Not every man. Not every woman. Everyone.

The power most people meet first is arrest. Under section 24 of the Police and Criminal Evidence Act 1984, a constable can arrest without a warrant only with reasonable grounds to suspect an offence, and reasonable grounds to believe arrest is necessary for a listed reason. One is “to protect a child or other vulnerable person”. Under section 28, no arrest is lawful unless the person is told the ground for it.

The power protects victims, including children. The safeguards protect people from being detained on a guess. Both have to work, whoever is involved.

Domestic abuse can happen to anyone, of any gender, and children pay the price. The law recognises them as victims in their own right, and in England a parent or carer being a victim of domestic abuse is a factor in around a third of children-in-need assessments where factors were recorded (Domestic Abuse Act 2021, s3; DfE, Children in need 2025).

For police forces, councils, hospitals and courts, all public authorities under section 6 of the Human Rights Act, this isn’t optional. It’s the law.

What you can do

  • If someone you love is in a care home or hospital and can’t decide for themselves, ask whether a DoLS authorisation is in place, and how it can be challenged in the Court of Protection.

  • If a child is to be placed in secure accommodation or deprived of their liberty, ask which court order authorises it, and make sure the child has their own lawyer.

  • If you’re accused of breaching a court order or you’re arrested, get legal advice straight away. You’re entitled to be told the ground for any arrest.

  • Ask your MP two questions. When will the government decide what happens to the Liberty Protection Safeguards? And when will every child who needs a secure placement get one in a home that is registered and approved for it?

This series is general information, not legal advice.

Sources

Charley Bickers, Founder of UN For Men - The United Global Alliance For Men & Boys

[Subscribe on Substack button]

The United Global Alliance For Men & Boys is not part of, affiliated with, or endorsed by the United Nations. UN for Men is our campaign for a dedicated UN body for men and boys.

 
 
 

Comments

  • Linkedin
  • Facebook
  • nstagram
  • X

The United Global Alliance For Men & Boys is run by Sentient OS Ltd, company no. 17264941, registered in England and Wales.

The United Global Alliance For Men & Boys is not part of, affiliated with, or endorsed by the United Nations. UN for Men is our campaign for a dedicated UN body for men and boys.

 Designed by Sentient OS

Company information

sentient-logo-white-wordmark-web-400w-v2.png
bottom of page