The Offence of Child Abduction in New South Wales

A New South Wales woman was sentenced to two years prison time in March 2025, over having abducted her own child from a park on Dharawal land in the coastal city of Wollongong in December 2022. The woman had taken her child from the custody of a care worker at a prearranged meeting organised by the NSW Department of Communities and Justice.

The woman identifies as a sovereign citizen, and she later told the court that she was attempting to take her child, who was in state care, out of the jurisdiction of NSW. The woman turned up to the meeting in a van that she’d hired the day prior. She handed the care worker a “statement of notice” on arrival and then promptly placed her child in the back of the vehicle and took off.

The vehicle was subsequently stopped by NSW police north of Sydney three hours later. The woman was convicted over the crime of child abduction in September 2024, and Judge Andrew Haesler determined to sentence her to 2 years prison time in early 2025. His Honour explained to the court that the woman sought to take her child to a place where the laws of NSW did not apply.

Judge Haesler also considered that the woman had done herself no favours by representing herself in court. During proceedings, the woman explained that she does not recognise the validity of NSW laws and refused to enter a plea. The defendant further caused chaos in the courtroom, when she repeatedly interjected and directed personal insults at people involved in the trial.

Abducting children in NSW

Section 87 of the Crimes Act 1900 (NSW) contains the offence of child abduction. There are two versions of this crime.

The first child abduction offence under subsection 87(1) has a focus on taking or detaining a child, with the intent of “removing or keeping them from the lawful control of any person having parental responsibility for the child”, without their consent, while a subsection 87(2) offence has a focus on the stealing of a child. Both crimes make a convicted person liable to up to 10 years imprisonment.

This section further sets out that for this offence a child means someone under the age of 12. As for “detaining a child”, this means making them remain where they are, while “taking a child” means removing them from the care of the adult.

For the offence of child abduction to be proven, the prosecution must show beyond a reasonable doubt that the accused intentionally took or detained a child under 12 years old without the consent of the person who held parental responsibility for the child, or otherwise, that the individual on trial intentionally stole a child under the age of 12.

Subsection 87(4) then outlines that “a person who has parental responsibility for a child” refers to either “a person who has, in relation to a child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children, or a person authorised to be the carer of the child under an Act relating to the care and protection of children”.

The section 87 child abduction offences are different to the offence of kidnapping, which sits under section 86 of the Crimes Act. Kidnapping can involve the taking of either an adult or a child for the purposes of gaining an advantage, like receiving a ransom. Kidnapping is a broader offence, it can be more serious, and it carries up to 14 years prison time.

Defences against child abduction

A number of defences can be raised against a charge of child abduction. The statutory defence of self-defence is contained is section 418 of the Crimes Act. An accused can raise self-defence when they insist that their acts were perpetrated in order to prevent harm to themselves, or in the case of child abduction, the accused can claim they used force to take a minor to protect them from harm.

Self-defence can also be raised against an attempt to prevent the unlawful deprivation of one’s own liberty or that of another, along with cases where unlawful trespass or property destruction have been stopped using force. But self-defence can’t be raised as a defence against trespass or property damage if the defendant’s actions resulted in the death or the serious injury of another person.

The defence of duress can be raised against a charge of child abduction. Duress involves arguing that the accused broke the law in order to prevent a threat of harm being perpetrated against themselves or someone else. In terms of child abduction, one can consider a case where a person argued they removed a child from parental supervision because that individual was threatening to harm the child.

Necessity is another key defence that can be raised against child abduction. The defence of necessity entails a defendant putting to a court that they perpetrated their questionable actions in order to avoid a much greater peril from happening. So, if a defendant believed a child was in imminent danger and they removed them to avoid this, it could be raised against a charge of abduction.

Overhauling abduction offences

The Criminal Legislation Amendment Bill 2001 was introduced into NSW parliament by then NSW attorney general Bob Debus on 30 November that same year. The then chief lawmaker of the NSW Labor Carr government explained that as recent legislation had served to modernise the offence of kidnapping the other offences relating to abduction were also being overhauled.

Debus explained during his 2001 second reading speech on the bill that the abduction offences of the time included “abduction of a woman against the will of parent, forcible abduction of a woman and abduction of a girl under 16,” and he added that “the majority of these offences have been on the statute books since the Crimes Act was first proclaimed in 1900”.

The law on the books prior to the reforms included the section 86 offence of abduction of a woman against her will and the section 87 offence of luring a woman under 21 away from her parents for the purposes of sex.

The 2001 omnibus legislation revoked all the then current sections 86 through to 91, which related to various forms of abduction, and replaced them with the newly reformed offence of kidnapping, which was renumbered section 86, along with the enactment of the new offence of child abduction under section 87 of the Act.

“The language and concepts of the offences in the division are… antiquated and discriminatory and ought to be updated,” Debus told the NSW lower house in terms of the overhaul of abduction offences a quarter of a century ago.

“The offence of child abduction remains but its language has been updated.”