Child abduction is a distressing reality for many families around the world. In Australia, it is particularly rare for a child to be kidnapped by a stranger, but more common for a child to be abducted by a parent or other family member. Australia has established legal mechanisms to address such situations, which are outlined below.
Child abduction
Under the Family Law Act 1975, parental child abduction occurs when a parent, or someone acting on their behalf, removes a child without permission from their legal caretaker. An international parental child abduction occurs when a parent removes the child not only from their parent but also from Australia. The law stipulates that when there are parenting orders in place (or such orders are pending), a parent must obtain the other parent’s permission (or a court order) before taking a child overseas.
The Hague Convention on the Civil Aspects of International Child Abduction, of which Australia is a signatory, establishes that child custody hearings should be held in the child’s habitual country of residence. This means that the Federal Circuit and Family Court (“the court”) (or the Family Court of Western Australia) has jurisdiction over parental responsibility for any child who usually lives in Australia. Thus, if a child is taken to any Hague Convention country, the Australian court retains the jurisdiction to make orders for them to be returned to Australia. The 2018 amendments to the Family Law Act made international parental abduction a criminal act punishable by imprisonment for three years.
Reasons for child abduction
Child abductions most often arise during a stressful separation or divorce proceeding, or as the result of a disagreement between separated co-parents. The parent’s motivation for abduction of the child may be related to a desire to protect the child, or to punish the other parent. In addition, some abductions are motivated by the desire to have the child grow up in a certain cultural or ideological environment. Some abducting parents take their children to their home country and seek a court order that favours them because of their gender, nationality, religion, or cultural affiliation.
Legitimate defences
It is important to know that a child cannot give consent to something that breaches an existing court order. Thus, it is not a valid defence to a charge of parental child abduction for a parent to argue that the child wished to go with them. However, there are legitimate defences against the charge of parental child abduction. For instance, a parent who is escaping domestic violence has a legitimate defence for taking their child from the other parent if they are protecting the child from physical or mental harm. This defence does not apply, however, if the court has already issued parental responsibility consent orders, and the parent defies the orders to remove their child.
If a parent feels that the court has made the wrong decision when issuing parenting orders, and their child is in danger from the other parent, the parent should consult a solicitor to pursue legal remedies rather than take unlawful action to abduct the child.
Recovery orders
When a child is abducted, the parent, guardian or another concerned party can apply to the court for a recovery order. A recovery order authorises state and federal police officers to locate and return the child to their legal caregiver. An application for a recovery order must provide evidence of the need for the order, such as the care arrangements that were violated, and the risk to the child’s welfare if the order is not granted. To obtain a recovery order, it is usually necessary to attend a court hearing where the judge will consider the evidence and determine whether to grant the order.
With international abductions, the federal police will coordinate with overseas agencies to locate the child and return them to Australia. If a parent suspects that their child is at risk of being abducted from Australia, they should report their concern to the local police. The federal police can place their child’s name on the Family Law Watchlist to prevent them from leaving the country. Anyone with parental responsibility for a child can submit a Child Alert Request with the Australian Passport Office which flags the need for caution when issuing travel documents and passports for that child. If the child already has a foreign passport, the parent should contact the destination country’s consulate or embassy for help.
Inadvertent contravention
People often believe that it is impossible for them to abduct their own child, but this is not the case. For instance, when there is a court order in place preventing interstate travel, even a day trip over the state border with the child is a serious breach of the order. Anyone who finds they have inadvertently contravened a parenting order should contact the other parent immediately, and inform them of the child’s location and their intention to return the child per the agreement. If the other parent notifies the authorities first, the parent can find them criminally liable for parental child abduction.
Do not hesitate to get in touch with Taylor Rose on 1800 491 469 for tailored advice on your legal concerns. Our family law solicitors can help you understand the legal framework that surrounds child abduction and recovery orders in Australia.
