Child abandonment is generally when a parent, guardian or someone with a parental responsibility for a child deserts that child with no regard for their physical or mental health or safety, and with the intent to relinquish all rights and responsibilities to them.
Legislation in almost every state and territory approaches child abandonment from a welfare perspective rather than criminal one, providing that an abandoned child can be classified as in need of protection and care.
Section 364 of the Criminal Code 1899 makes it an offence for a person who has care of a child aged under 16 to cause harm to a child by “prescribed conduct”, when the person knows or ought reasonably to know the conduct could cause harm to the child.
“Prescribed conduct” includes failing to provide or trying to obtain adequate food, clothing, accommodation or medical treatment; deserting the child; or leaving the child without means of support.
“Harm” means any significant detrimental effect on the child’s physical, psychological or emotional wellbeing, whether temporary or permanent.
The maximum penalty is 7 years’ imprisonment.
Section 364A makes it an offence to leave a child unattended for an unreasonable time without supervision or care. The meaning of unreasonable depends on the circumstances. The maximum penalty is 3 years’ imprisonment.
Australian Capital Territory
Section 345 of the Children and Young People Act 2008 states a child is in need of care and protection in circumstances that include when those with parental responsibility for a child are dead, have abandoned the child, or cannot be found after reasonable inquiry.
Section 20 of the Care and Protection of Children Act 2007 states a child is in need of care and protection in circumstances that include when “the child is abandoned and no family member of the child is willing and able to care for the child”.
New South Wales
Section 71 of the Children and Young Persons (Care and Protection) Act 1998 provides that a court can make a care order if it is satisfied a child is in need of care and protection for reasons that include when “there is no parent available to care for the child as a result of death or incapacity or for any other reason”.
Section 18 of the Children and Young People (Safety) Act 2017 states a child is taken to be at risk of harm in circumstances that include when the child’s parents or guardians have “abandoned the child or young person, or cannot, after reasonable inquiry, be found”.
Section 4(1) of the Children, Young Persons and Their Families Act 1997 states a child is at risk in circumstances including when the parents or guardians of the child are “dead, have abandoned the child or cannot be found after reasonable inquiry”.
Section 162(1) of the Children, Youth and Families Act 2005 states a child is in need of protection on grounds that include when the child has been abandoned by their parents and after reasonable inquiries, the parents cannot be found and there is no other suitable person willing and able to care for the child.
Section 28(2) of the Children and Community Services Act 2004 states that a child is in need of protection in circumstances that include when child has been abandoned by their parents, and after reasonable inquiries, the parents cannot be found, and no suitable adult relative or other suitable adult can be found who is willing and able to care for the child.
Risk factors for child abandonment
There are identified risk factors that make a child vulnerable to abandonment. These include:
- social or geographic isolation of the child or their family;
- abuse, neglect or abandonment of a sibling;
- domestic violence;
- a caregiver suffering physical or mental health issues which impair their ability to care for the child;
- a caregiver’s abuse of alcohol or drugs.
For advice or representation in any legal matter, please contact Armstrong Legal.