What does it mean to abduct a child? Child abduction occurs when a parent removes a child from the care of the other parent, without their knowledge or consent, and without a Court Order. It is estimated that there are more than 150 child abductions each year in Australia.

Abduction is prohibited under the Family Law Act 1975 (Cth) where orders are in place, or when parties are seeking parenting orders from the Court. This includes any person who acts on behalf of the parent in attempting or succeeding in abducting a child.

Children taken in Australia

If your child is abducted within Australia there are legal steps that can be taken on an urgent basis for their return, referred to as a “recovery order”.  This can usually be granted on an ex parte basis, meaning on one party’s evidence alone at first instance.  A recovery order allows the police to do things necessary to locate and recover the child. Proceedings may then be required for parenting orders from the Federal Circuit and Family Court of Australia.

International child abduction

International child abduction cases are far more complex. What happens if your child is taken in these circumstances?

If the child is still in Australia and has not yet departed overseas, you may be able to prevent them from leaving the country by placing them on the airport watchlist. This effectively injuncts against overseas travel and authorises the Federal Police to take swift action if they are alerted to a child’s presence in an airport or departing flight.

The steps that can be taken once a child has already left the country may be determined by identifying which country the child has been taken to, and whether or not they are a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (known as the Hague Convention). The Hague Convention dates back to 1980 and is a multilateral treaty in force with numerous countries (including Australia), providing procedure to seek the return of a child to their home country. Separately, Australia has also negotiated bilateral arrangements in relation to child abduction cases, with both Egypt and Lebanon. Further information around the countries that are a party to the Hague Convention can be found here: https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/hague-convention-civil-aspects-international-child-abduction

The Hague Convention is administered by the Australian Central Authority, and an application can be made via the Central Authority for the child to be returned to Australia. Return applications are heard in the Federal Circuit and Family Court of Australia or the Family Court of Western Australia.

If your child is in a non-Hague Convention country, then the only recourse you may have is to seek legal advice in that country, and communicate with the Department of Foreign Affairs and Trade (DFAT) who may also provide some limited assistance. In those circumstances, your access and contact with your child may need to be determined by the laws of the relevant country.

Application under the Hague Convention

If you are making an application for the return of a child to Australia from overseas, it is critical that you act quickly. The length of time to take action could directly impact the success of your application.

The circumstances leading up to the abduction; the specific arrangements that were in place; and discussions that took place between the parties, are all relevant to the likely success of an application.

Defences to an application can include:

• That a child would be exposed to grave risk of harm in being returned, together with other human rights violations. This could include escaping family violence, or risk of mental or physical harm. The application of these defences will depend on the circumstances of each case.
• If a child has reached an age of maturity, their views and wishes can be taken into account, particularly if they object to being returned. In a recent case of Cullen & Secretary, DFFH (2023) [1] a court determined whether a 15 year old child’s wishes were sufficient to enable her to remain in Australia rather than return to her homeland of Poland. In that case the court found that the child’s objection to returning to Poland did not show a strength of feeling beyond a mere preference and was brought about by the mother’s enmeshment with the child.
• Consent or acquiescence is another defence, requiring a party to prove by evidence that there was either agreement (implied or direct) for the child to be taken overseas; or consent was given. Often the court will be given evidence of personal communications (text, email etc) or otherwise via evidence as to verbal discussions between the parties.

The impact of these defences in having a child returned to Australia may depend on whether Court orders have been made in the Federal Circuit and Family Court.

Once a child has been detained overseas for longer than 12 months, it is otherwise open to the abducting parent to argue that the child has established connections and should not be returned to Australia.

Recent media articles have highlighted ongoing issues with countries such as Japan. Although a signatory to the Hague Convention, Australian families have experienced ongoing and exhaustive complications due to the laws of Japan, particularly in circumstances where rights to seek the return of the child under the Hague Convention have not been exercised within time, and the children have remained in Japan and dealt with under their legal system. Since 2004, 89 Australian children have been registered as being abducted to Japan, after being isolated from their Australian parent.  Under the legal system in Japan, one parent obtains complete control over a child after separation, including all decision making powers, by default.  This system does not recognise joint legal custody.  Thankfully amendments have been made to this legislation, coming into effect in 2026, which will enable parents to mutually agree to joint custody/parenting arrangements.

If your child is at risk of being abducted from Australia you should seek urgent legal advice and attend to the following:

• Locate and secure the child’s passport and birth certificate.
• Have a list of contact details of family/friends located overseas.
• Locate a recent photo of your child and the other parent, if required.
• Seek legal advice regarding having your child placed on the airport watchlist, and to obtain urgent parenting orders (if required). A court may be persuaded, such as in the case of Kai & Min (2024) FLC ¶94-172, that an injunction against a party travelling overseas with the child is appropriate. In this case it was ordered that the parties were unable to travel overseas for a period of 5 years.

If you suspect that an application may be made for a passport, you can complete a Child Alert request with the Department of Foreign Affairs. This can be done via the Australian Passport Office website. If your child is qualified to obtain a passport from another country, contact the embassy of that country and complete a child alert with them also.

If you have any concerns regarding child abduction, or require assistance in making a Hague Application for the return of your child, please contact one of our team.

[1] Cullen & Secretary, DFFH (2023) FLC ¶94-138