International and local child abduction: Australian laws
The kidnapping or abduction of your child by a stranger is the worst nightmare of every parent. Kidnapping involves the taking of a child using threat, force, or deceit, with the intention of causing harm or detaining the child against their will. Fortunately, stranger abductions and kidnapping is a relatively rare occurrence in Australia.
Most child abductions in this country are by family members where there is no intention to harm the child, only to deprive the other parent of care of the child. This article examines the law as it relates to child abduction.
What is parental child abduction?
Parental child abduction occurs when a parent takes, conceals, or detains their child without the other parent or caregiver’s permission or without a court’s direction.
This situation most often arises during separation or divorce proceedings. Family law disputes and child “custody” battles can be incredibly stressful and acrimonious, and for some people in this situation, child abduction or removing the child from the other parent’s care feels like the only solution.
How the law defines child abduction
Child abduction is legally defined as the unlawful removal of a child from the legal caretaker even if the child gives consent. This is an important distinction, because it means that it is not a defence to say that the abducted child wished to go with the abducting parent.
Parental child abduction is prohibited under the Family Law Act 1975 (Cth) if the Court has made consent orders or the parents are currently in court proceedings relating to parenting responsibility. The prohibition under the Act is not limited to the taking of a child by the other parent: parental child abduction includes any person who acts on behalf of the parent in attempting or succeeding in abducting a child.
In some cases, child abduction might also be considered kidnapping and attract the criminal sanction associated with that crime.
There are, however, some legitimate defences against a charge of parental child abduction. A parent who is escaping domestic violence and wishes to protect their child from mental or physical harm has a legitimate defence, in addition to a person’s general right to act in self-defence to protect themselves and others from harm.
It is important to understand, however, that this defence does not apply where the Federal Circuit and Family Court has made orders as to parental responsibility, and the parent wilfully defies these orders to remove their child. Sometimes parents feel that the Court has made the wrong choice, and that their children are in danger from the other parent or caregiver.
These are difficult cases because the parent believes that they are doing the right thing in protecting their child from harm, but their actions are illegal and have a strong potential to create secondary harm for the child, including having psychological implications for them. In cases where a Court Order is in place and you are concerned that the Order exposes your child to harm, you must seek the advice of a solicitor and pursue legal avenues to protect your child, and not try and hide the child from the other parent. If you genuinely believe that the child is in immediate danger we recommend seeking help from local authorities, like the police.
How common is child abduction in Australia?
Australia has a very high rate of child abductions compared to the rest of the world. According to the Australian Missing Persons Register, more than 150 children are abducted by a parent every year and many of these children are unfortunately never located.
What is international parental child abduction?
It is an international parental child abduction when the parent removes the child from their parent and from Australia. The Hague Convention stipulates that child custody proceedings should be held in the child’s habitual place of residence. This means that if your child usually lives in Australia, then the Federal Circuit and Family Court of Australia has the jurisdiction to decide who should care for the child. As such, the child’s other parent cannot, for instance, take the child to their own home country and seek a decision from a court there. However, many signatory countries to The Hague Convention are not abiding by this stipulation, and are allowing returning nationals to seek parenting orders through their domestic courts for an Australian child.
An abducting parent may be more likely to win a court case that is held in their country of origin, particularly if the laws of that country favour the rights of one parent over the other, or give preference to a parent from a given religious or cultural group.
How do I recover my child in an internal child abduction case?
If a child in your care has been abducted, whether you are a parent, guardian, grandparent or concerned party, you can apply to the Court for a recovery order. Typically, it is the child’s other parent or a person with parental responsibility under a parenting order that applies for an order to return the child to their usual residence.
A recovery order empowers the Australian Federal Police (AFP) to investigate and make contact with customs and border control to enquire about the travel movements of the child and abducting parent. The AFP can monitor the suspected abductor’s bank account transactions and telephone activity. When a child has been aducted overseas, the AFP will coordinate with international agencies to find the abducted child and return them to Australia.
The Court can also use the recovery order to prohibit the abducting parent from taking on care of the child again if there is an ongoing risk of the child being taken out of the country.
Previously, while a recovery order authorised the police to attempt to recover the child, the abducting parent was only liable for a breach of court orders, and not criminally liable. In 2018, amendments to the Family Law Act made international parental abduction a criminal act punishable by three years’ imprisonment. The Court also now has authority to halt any child support payments due to the abducting parent.
How do I apply for a recovery order?
You can apply for a recovery order from the Federal Circuit and Family Court of Australia. Often parents will be in the middle of family law proceedings to arrange custody matters or property settlements at the time of the child abduction.
If you do not already have a parenting order in place, you should make an application for a parenting order when you submit an application for a recovery order. This will means that when your child is returned, you have the authority of the Court to prevent the other parent from having care of the child without supervision.
Abducting your own child can amount to a crime
Some parents might think that it is impossible to abduct your own child, but this is not the case. For instance, if you have Court Orders that prevent you from taking your child interstate and you drive over the border to visit a relative, you are in breach of an order of the Court. This is a serious issue and you should approach it as such.
If you find that you have inadvertently breached (contravened) any parenting agreement or order, it is essential that you get in touch with the other parent without delay, to notify them of the whereabouts of the child and your intention to return them as per the agreement. If you delay and the other parent notifies the authorities, you can find yourself criminally liable under new child abduction laws.
Parental child abduction is criminal offence
Criminal offences are part of state and territory law, so the rules depend on the jurisdiction where the offence occurred. As an example, we’ve outlined how kidnapping and parental child abduction matters are handled in New South Wales.
Kidnapping in New South Wales
Kidnapping is a criminal offence under the Crimes Act 1900 (NSW) with a maximum penalty of 14 years in prison. In order to convict someone on a charge of kidnapping, the prosecution must establish beyond a reasonable doubt that the defendant took a person without consent with an intention to hold them for ransom, or other advantage, or for another serious indictable offence (an offence punishable by 5 or more years in prison). This charge is unlikely to apply to a parental abduction case unless the parent intended to, or did, cause harm to the child.
The maximum punishment for kidnapping increases to 20 years if you were in the company of others or caused actual bodily harm to the victim, or 25 years for a combination of both factors. Defences to the charge of kidnapping include self defence, necessity, duress, or claim of right.
What to do if your child is at risk of being abducted from Australia
If you suspect that there is a risk that your child will be abducted from Australia, you should report your concern to the local police immediately. You can place the child’s name on the Family Law Watchlist by contacting the Australian Federal Police (AFP) and hopefully prevent the child from leaving the country.
If you have parental responsibility for a child, you can also submit a Child Alert Request online with the Australian Passport Office website. This Child Alert Request warns the Department of Foreign Affairs and Trade that there is a need for caution when issuing a travel document or Australian passport to a child. This will not prevent your child from travelling abroad if they already have a foreign passport, in which case you will have to contact the consulate, embassy or high commission of the destination country for help with the child’s passport.
The Department of Foreign Affairs and Trade website lists contact details for foreign government representatives in Australia.
What to do if your child has been abducted from Australia
If your child has been taken this is an emergency and you should call 000 and report that your child has been abducted. You should prepare for this possibility and keep a note of the details of the other parent’s vehicle (eg licence plate number) and recent photos of your child and the other parent where possible.
If your child has already been taken from Australia, your chances of being able to compel their return depend heavily on whether their destination country is a signatory of the Hague Convention On the Civil Aspects of International Child Abduction.
The Hague Convention is an international agreement designed to both promptly return the child to their habitual residence and ensure a parent’s right to access the child. Australia is a Hague convention country, which means that we agree to comply with the rules of the Convention. If your child has been taken to Hague Convention country, you can ask for assistance from the Australian Central Authority.If you want more information on the Hague Convention, read this.
Even if a country is not a signatory to the Hague Convention, there may still be avenues that you can pursue to arrange the return of your child. For instance, Australia has child welfare bilateral agreements with countries such as Lebanon and Egypt, where diplomatic avenues are used to coordinate the return of child from these countries. If you child has been taken to a country that is not a signatory of The Hague Convention or a country where Australia has a bilateral agreement, you should call the Consular Branch of the Department of Foreign Affairs and Trade (DFAT) on the 24 hour hotline 1300 55 135.
Can I take my child overseas without the father’s permission in Australia?
Children are taken out of Australia for any number of reasons, for holidays or because a parent is moving overseas and wants to take their child. Sometimes, a parent is escaping domestic violence, or is afraid that they will lose access to their child.
The law in Australia stipulates that any parent must have the other parent’s permission before you can take a child overseas except in special circumstances. Therefore, a mother can travel overseas with her child without the father’s permission if the Court finds that it is in the child’s best interests, but the mother cannot simply decide that this is the case and take the child without the father’s permission.
We recommend that you seek legal advice if you’re considering overseas travel but you’re not sure whether you need permission from your child’s other parent in your situation.
Where to go for help
If your child has been removed from the country without your consent, you can contact the International Social Service Australia (ISS) for urgent legal guidance.
The family law specialists at Unified Lawyers can provide any legal advice you need about child abduction and Australian laws. Please call 1300 667 461 today for assistance with everything from parenting orders to a recovery order.
If you have any other legal questions in relation to parenting, including international travel, wishing to relocate overseas, child custody arrangements, parental responsibility or any other family law matters, our family lawyers are here to help you.
Our legal service is available 24/7 to people all over Australia, let us help you resolve your family law matters today.