People around Australia let out a collective sigh of relief this week, some even shed a tear, at the very happy news that 4-year old Cleo Smith was found by Western Australian Police and had been reunited with her family.
The little girl was taken from her parents’ tent in early hours of the morning on October 16 at a camping site near the Blowholes in Western Australia.
Police spent 18 days searching the area, taking samples for forensic testing, interviewing campers, family and friends, viewing CCTV footage and responding to tip offs from the public. Their hard work and perseverance eventually led them to a home in a suburban street in Carnarvon. WA, where Cleo was found alone, playing with toys.
A man has been arrested and charged with forcibly taking a child, and investigations are continuing. At this stage, Police haven’t ruled out laying other charges.
Child abduction in New South Wales
The offence of forcibly taking a child is known as Child Abduction in New South Wales and it is defined in Section 87 of the Crimes Act 1900.
The Act states:
(1) A person who takes or detains a child with the intention of removing or keeping the child from the lawful control of any person having parental responsibility for the child, without the consent of that person, is liable to imprisonment for 10 years.
(2) A person who takes or detains a child with the intention of stealing from the child is liable to imprisonment for 10 years.
(3) In this section–
“child” means a child under the age of 12 years.
“detaining a child” includes causing the child to remain where he or she is.
“taking a child” includes causing the child to accompany a person and causing the child to be taken.
Possible defences to the charge include: Self-defence, including the defence of the child. Duress and necessity.
Contrary to popular belief, many children are actually not abducted by strangers. A substantial number of child abduction cases in Australia involve parents who are tangled up in bitter custody battles. Family law matters are incredibly sensitive and emotional and every situation is unique. Some parents become vindictive or act out of desperation when they feel that custody orders, or parenting orders, are unfair.
Parental abduction – a different criminal offence
Parental abduction is a criminal offence. It occurs when one parent takes, detains or conceals a child from their other parent.
In 2016 television programme 60 Minutes reported on a story about Australian mother Sally Faulkner’s long battle to bring home her children, who had been taken to Lebanon by their Lebanese father.
The 60 minutes crew ended up detained in custody in Beirut for several days, and although the programme received a fair amount of criticism for getting involved in the family dispute, it did highlight an important issue that’s not well known or understood in Australia.
According to research by Child Recovery Australia, more than 250 children are abducted into or out of Australia by a parent every year, and it is not uncommon for other members of the extended family to assist in the abduction.
Sometimes children are not taken overseas, they may be taken interstate.
If children are taken overseas, then it can be difficult to find them, and bring them home, although the Federal Government does have resources to help families in this situation.
The first step is to get legal advice, rather than try to solve the problem yourself. It is possible to apply for a recovery order to have the children returned to the parent or guardian who has legal custody as determined by the courts.
If you have been charged with parental abduction or child abduction, then you need to seek specialist legal advice.
This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.