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 Child Stealing?

The offence of Child Stealing occurs when a defendant takes possession of a child under 16 years of age with the intent to deprive the child’s parent or legal guardian from that child. 

Essentially, it is a crime against the possessory rights of a parent or legal guardian. In order to prove the offence, there must be an intention to deprive the legal guardian of the child of their possession whether temporarily or permanently.  

The actions of the defendant would ordinarily include using force, fraud or enticement in order to deprive the child away from their legal guardian. Under this section, the word ‘parent’ is taken as being a person who has adopted the child or a person who is a parent under a parentage order. It does not include the natural parents of the child. In circumstances where the child themselves have, without inducement, removed themselves out of the possession of their parent, no offence has been committed.  

The Law:-

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

(1) Any person who, with intent to deprive any parent, guardian, or other person who has the lawful care or charge, of a child under the age of 16 years, of the possession of such child, or with intent to steal any article upon or about the person of any such child— 

(a) forcibly or fraudulently takes or entices away, or detains, the child; or 

(b) receives or harbours the child, knowing it to have been so taken or enticed away or detained; 

is guilty of a crime, and is liable to imprisonment for 7 years. 

(2) It is a defence to a charge of any of the offences defined in this section to prove that the accused person claimed in good faith a right to the possession of the child, or, in the case of a child whose parents were not married to each other at the time of its conception and have not since married each other, not being a child who has been adopted as aforesaid, is its mother or claimed in good faith to be its father.

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 Child Stealing the Prosecution must prove; 

  1. Defendant – The Prosecutor has to prove the identification of the offender; 
  2. With Intent to Deprive; 
  3. A Parent or Guardian;   
  4. Of a Child Under 16 years of Age;  
  5. Of Possession of that child;  

a. by forcibly or fraudulently takes or entices away, or detains, the child;

b. receives or harbours the child, knowing it to have been so taken or enticed away or detained. 

Maximum Penalty for Child Stealing:-

The maximum penalty for this offence is seven years imprisonment. 

Convictions:-

In Queensland, if a person is convicted of Child Stealing, 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 will first be heard in the Magistrates Court.  It is an indictable offence what is too serious for the Magistrates 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 a Child Stealing allegation or if I am charged with Child Stealing?

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.

Please contact us online or 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.