CHAPTER 4 RIGHT TO PERSONAL LIBERTY The African Charter on the Rights and Welfare of the Child of 1990 does not contain a special provision on the right of children to personal liberty. Article 30 specifies, however, that ‘a mother shall not be imprisoned with her child’ and requires States parties to ‘ensure that a non-custodial sentence will always be first considered when sentencing such mothers’.17 For the purpose of the Global Study on Children Deprived of Liberty, the UN Task Force and the NGO Panel decided from the outset to structure the Study according to the following six situations of deprivation of liberty: • Children deprived of liberty in the context of the administration of justice • Children living with their primary caregivers in prison • Children deprived of liberty for migration-related reasons • Children deprived of liberty in institutions • Children deprived of liberty in the context of armed conflict • Children deprived of liberty in the context of national security. This means that the Global Study deals with settings of deprivation of liberty for which the State bears direct or indirect responsibility. If children are, for example deprived by their parents of liberty in private homes or by criminal gangs in the context of trafficking of children, these situations will not be covered by the Global Study. If parents place their children, however, in any form of institution, whether State-owned or private, this falls under the term ‘deprivation of liberty’, as also private institutions must be under some control of State authority. Contrary to the earlier jurisprudence of the European Court of Human Rights,18 it is today beyond doubt that the subjective element, namely the possible consent of the parents or the child is not relevant in defining whether a child is deprived of liberty or not.19 17 See in this respect Chapter 10 on Children Deprived of Liberty with their Primary Caregivers. 18 See: European Court of Human Rights, Nielsen v. Denmark, No. 10929/84, 28 November 1988, which ruled that a child’s placement in an institution by the parents would not amount to deprivation of liberty. This judgment was strongly criticised, e.g., by Van Bueren (1995), op. cit., pp. 212 ff.; Ursula Kilkelly, The Child and the European Convention on Human Rights, Aldershot, Ashgate Publishers, 1999, pp. 35 ff. 19 Cf. Liefaard (2018), op. cit., pp. 326 f. 68