CHAPTER 1 DEPRIVATION OF LIBERTY IS DEPRIVATION OF CHILDHOOD deprived of liberty by their parents for their own protection. They cannot simply leave their home or stroller as the parents have an obligation to protect them against all kinds of dangers on the streets and in the wider community. Usually, parents master this challenge of protecting their infants and small children without unnecessarily restricting their right to personal liberty, but sometimes they may lock them into a closed room, for punitive or preventive reasons. Nevertheless, we decided that it would go beyond the purpose of the Global Study to also cover all forms of deprivation of liberty in the family. This decision opened, however, further questions. What if the parents cannot cope with their infants and place them temporarily or permanently in a privately-run home for children? Usually, small children cannot simply leave a kindergarten or orphanage of their own free will, as they are also in need of protection. In principle, this rule also applies to older children, whether they are in the family, in a private or State institution. In most States, child welfare laws restrict the freedom of children of different ages to go out at night unaccompanied. Strictly speaking, I deprive my 15-year-old son of his right to personal liberty when I prohibit him from leaving home to attend a private party after midnight. The same applies if such rules are imposed in any private or public institution for children with disabilities or for the educational supervision of children. Does this mean that all children who live in an institution are deprived of liberty? How are institutions to be defined? Should we make a distinction between large-scale institutions and small family-like group homes for children? Does it make a difference whether these institutions are run by the State, by a faith group or private enterprise? After long and highly controversial discussions during various expert meetings, we decided to apply the definition of deprivation of liberty under international law, which requires a decision by a judicial or administrative authority.4 Whether the place of detention (irrespective of being an institution, a migration detention centre or a prison) is run by the State or by a private organisation is not a decisive factor, but there must be some governmental involvement in the decision that leads to the deprivation of liberty. Strictly speaking, this would exclude many children who are placed by their families in a privately-run institution without the active involvement of a governmental authority, although one may argue that these private institutions have been or at least should have been licensed by a decision of a governmental authority. In any case, a certain flexibility remains with respect to the concept of de iure and de facto deprivation of liberty, at least in private institutions. 4 For the precise legal definition of deprivation of liberty, as applied in the Global Study, see Chapter 4 on the Right to Personal Liberty. 12