What the law says
Section 363 of the Criminal Code Queensland states:
- A 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 of the child, and against the will of the father, mother, or other person, is guilty of a crime.
- It is immaterial that the offender believed the child to be of or above the age of sixteen years.
- It is immaterial that the child was taken with the consent of or suggestion of the child.
What the police must prove
In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.
- took an unmarried child under the age of 16 years.
- out of the custody or protection of the child’s father, mother, or person having lawful care or charge of the child.
- against the will of the father, mother or other person.
- the taking was unlawful. That is, not authorised, justified or excused by law.
It is immaterial that the child was taken with the consent of or at the suggestion of the child. It does not matter that, at the moment the child is abducted, the child is in the physical possession of some other person
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence.
The Maximum penalty for the offence of Abduction of Child Under 16 is 7 years imprisonment.
Which court will hear the matter
This matter is an indictable offence which means that it is dealt with in the District Court.
Possible defences to this offence include but are not limited to
- Identity- i.e. not the accused
- Honest and reasonable belief the child was older than 16 years.
- Consent of the parents
- Honest and mistaken belief the accused had the consent of the parents