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abduction of a child under 16

Abduction of a Child Under 16

This article is for general information only and should not be relied on for specific legal advice.  The author will not be held responsible for any action that a person takes as a result of interpretation of the contents of this article.  It is important to seek specific advice from a qualified and experienced lawyer for any legal problem. 

What is Abduction of a Child Under 16?

In Queensland, the charge of Abduction of a Child Under 16 is an offence that involves the unauthorised removal of a child under 16 years old from the custody or protection of their natural father or mother or lawful carer against the will of the parent or lawful carer. Child abduction is an offence that can be committed by other family members or complete strangers to the child. An example of this charge would include a situation where a child’s aunty removes them from the care of their parents and attempts to take them overseas without permission. It is not a relevant factor in that situation whether the child agreed or consented to go with their aunty as there was no permission granted by the parents.

The Law:-

Section 363A of the Criminal Code (Qld) 1899 states;

(1) Any person who unlawfully takes an unmarried child under the age of 16 years out of the custody or protection of the child’s father or mother, or other person having the lawful care or charge of the child, and against the will of the father, mother or other person, is guilty of a crime, and is liable to imprisonment for 7 years.

(2) It is immaterial that the offender believed the child to be of or above the age of 16 years.

(3) It is immaterial that the child was taken with the consent of or at the suggestion of the child.

Elements of the Offence:-

It is the duty of the prosecutor to prove beyond a reasonable doubt that the Defendant has committed the offence.  Every charge has a number of elements that the Prosecutor must prove beyond a reasonable doubt.  For the charge of Abduction of a Child Under 16 the Prosecution must prove;

1.            Defendant – The Prosecutor has to prove the identification of the offender;

2.            Took an unmarried child who is under 16;

3.            Out of custody of their parents or lawful guardian;

4.            Against the will of their parents of lawful guardian.

Maximum Penalty for Abduction of a Child Under 16:-

The maximum penalty for this offence is seven years imprisonment.

Convictions:-

In Queensland, if a person is convicted of Abduction of a Child Under 16, then the court could impose one of the following penalties:

  • Jail (suspended, parole or actual time);
  • Intensive Corrections Order;
  • Probation;
  • Community Service Order;
  • Fines.

The actual penalty will depend on the circumstances of the matter including the seriousness of the offence and the individual circumstances and background of the Defendant.

Possible Defences:- 

There are a number of defences available to charges at law.  Not every defence is available to every charge.  You will need to seek specific legal advice to see if you have a defence available to you for this charge.  Some of the common defences available in criminal charges are;

  • Necessity;
  • Mistake of Fact;
  • Public Safety;
  • Self Defence or defence of another person;
  • Intoxication;
  • Provocation;
  • Accident;
  • Duress;
  • Compulsion;
  • Insanity;
  • Automatism

Which Court will your matter be heard in?

The charge of Assault Occasioning Bodily Harm will ordinarily be heard in the Magistrates Court in Queensland.  The charge will be heard and determined by a Magistrate alone whether you plead guilty or not guilty.  There is no jury in the Magistrates Court.   The Defendant may however elect to have the matter heard in the District Court.  In that event a committal hearing will have to be conducted and then the matter will proceed to the District Court.  If you enter a plea of guilty then the charge will be determined by a Judge.  If you enter a plea of Not Guilty then the trial will be before a Judge and Jury.  If you are found guilty then you will be sentenced by the Judge. 

What should I do if the police want to speak to me about an Abduction of a Child Under 16 allegation or if I am charged with Abduction of a Child Under 16?

You have the right to remain silent. You DO have to provide police with your name, date of birth and contact details. You should NOT answer any questions, make any statement or participate in any interview with the police. You should be polite to the officer but insist that you want to talk to your lawyer. You have the right to telephone a friend, relative or lawyer.

Call an Expert

If you are charged with a criminal offence, it is very important that you seek immediate legal advice. Our team at Brooke Winter Solicitors can give you over the phone advice. We have a solid reputation as expert Criminal Lawyers and can represent you in court.

Call us on 1300 066 669 if you have any questions. We can assist you no matter where you are located and can appear in every court.

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