Abduction

Abduction

There are laws relating to:

  • the recovery (return) of children.
  • preventing children from being taken overseas
  • what to do if children are taken overseas.

Some of these laws are complicated and you may need to take urgent action. You can call Legal Help on 1300 792 387 for a referral to a lawyer or some information about what to do. Get help with parenting arrangements and child contact.

Abduction in Australia

If the children are taken from your care or moved in Australia, and the move affects your ability to have a relationship with them, it is important to act quickly and get legal advice. What you do depends on the particular circumstances and whether the matter is urgent. Sometimes you can apply to the court for a ‘recovery order’ to have the children returned to you while the issues are being sorted out. The court does this if it thinks it is in the children’s best interests. This includes if the court thinks the children are at risk of harm. The Australian Federal Police are usually involved in the return of children, but sometimes it is the state police. The costs of returning the children are your responsibility.

Read more information about the recovery of children on the Australian Federal Police website.

Preventing a child from being taken Overseas

What you can do to prevent children from being taken overseas depends on the particular circumstances and how much time you have.

If your children have passports and there is a risk that they will be taken overseas it is important to act quickly and get legal advice. You can apply to the court for an urgent order to prevent your ex-partner (or other person) taking the children overseas. You can also apply for the children’s passports to be handed in to the court.

In urgent circumstances you can ask that the names of your children be put on a ‘watch’ list by the Australian Federal Police. This will prevent the children from being taken through any air or sea port. You need to have a court order in place or be currently applying for an order for your child’s name to be put on the watch list. In emergencies, there is quick access to court services and the police.

Passports

If your children do not have passports, you can refuse to sign the children’s passport application: the signature of both parents is needed, unless one parent has a sole parental responsibility order.

If you think there will be a passport application without your consent you can ask the Passports Office for advice about putting the children's names on a ‘child alert’ list, which is valid for up to 12 months. The Passports Office will contact you if the other parent puts in a passport application without your agreement.

An alert means there is special scrutiny of an application. It does not guarantee that a passport will not be issued or prevent a foreign passport being issued if the children are eligible.

Other countries have different requirements for issuing passports. Contact the embassy of that country if you are concerned about the children travelling on a passport from another country.

Location Orders

If your children are taken without your agreement and you think they are in Australia, then you can apply for an order to find where they are (a ‘location order’). The court can order individuals and government departments to say what they know about where the children are. For example, Centrelink may know the location of the parent who has the children.

Abduction overseas

If a parenting order exists it is against the law to move the children away from Australia without the written agreement of everyone covered by the order or by a further court order. This offence is punishable by jail. Get legal advice about what kind of written agreement the court will accept.f your children are removed from Australia, it is important to act quickly and get legal advice.

International agreements

Australia has an agreement (known as the Hague Convention) with many other countries to stop the removal (without court order) or abduction of children from the country where they usually live.

The convention allows a parent to apply for the children to be returned to Australia if the children are taken to another convention country without agreement or kept in a convention country longer than agreed. It does not apply to children over the age of 16.

The Commonwealth Attorney-General’s Department has a list of countries that participate in the convention. You can contact the department for information on how to apply to have your children returned to Australia or to receive assistance if you are eligible. This is not something you should do without proper legal advice and representation.

Court orders for the return of children

The general rule is that if children are removed without agreement, or kept in a participating country, they must be returned. However, if you are applying for the children to be returned, you must show that:

  • the children are younger than 16
  • you have rights of custody over the children (parents of children are both usually regarded as having ‘rights of custody’)
  • you are exercising those rights (or you would exercise them if the children were not removed)
  • the children usually live in Australia
  • you did not agree to the children being taken or kept overseas
  • less than a year has passed since the children were taken overseas.

The other person may be allowed to keep the children overseas if:

  • more than a year has passed since the children were taken, and an application filed by the other parent for their return, and the children are now settled in their new place
  • you did not have ‘rights of custody’ or did not exercise them
  • to return the children to where they used to live would put them at serious risk of physical or psychological harm
  • the children do not want to be returned and have reached an age and level of maturity that requires the court to consider their views
  • there would be a denial of the children’s fundamental human rights.

The process to have children returned from another country can be difficult. Some applications are not successful. You should get legal advice and support.

Abducted children brought to Australia

If the other country is a convention participant, the procedures are essentially the same, except that the central authority of that country will start proceedings, which are then heard in Australia.

Australian authorities pay the reasonable costs of the application. The applicant is responsible for costs in the home country and may be able to receive financial help there.

Get help

Find out how you can get help with parenting arrangements and child contact.