Recovery Orders & Missing Children

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When is a Child Considered to be Missing?

Following a relationship breakdown, a situation may arise where one parent has taken a child away from the other parent, contrary to the existing parenting plan or Orders currently in place. Regardless of whether this occurs within Australia or overseas, if the remaining party is unable to locate or communicate with the child they will likely be considered ‘missing’. When a child is not returned to their parent at the agreed day and time, an Application can be made to the Court for a Recovery Order, seeking the return of the child.

 

What is a Recovery Order?

A Recovery Order is a Court Order which requires a child to be returned to a parent or other person with a parenting order, that the child either lives, communicates or spends time with.

The Court Order will enable the start of the recovery process for the child. For example, the police will be permitted to begin the necessary procedures to locate and seek the safe return of the child. The Order can also provide instructions regarding the care of the child, until they are returned to the person who sought the Order.

The Court also has the ability to prevent the person who removed the child from doing so again, and if the situation does arise on another occasion, the Recovery Order has the power to act as authority for arresting the individual attempting to take the child.

It is important to understand that the Court will always act in the child’s best interests, which means that not all Applicants will be successful in seeking a Recovery Order.

 

Who Can Apply?

The following Applicants are permitted to apply for a recovery order:

  • A person the child either lives with, spends time with or communicates with (pursuant to an existing parenting order);
  • A person with parental responsibility; or
  • Any other person who is concerned with the care, welfare and development of the child (for example grandparents, siblings, aunt/uncle etc.)

 

How the Court Recovers the Children

Even though the Court has the power to make the Order, it relies on those subject to the Order to actually recover the child, e.g. the police or other government agencies. The Court will need to be notified when the child has been recovered, as they have no direct involvement with the actual recovery process.

If the child is not successfully recovered following the Order, there are other steps that can be taken. A Location Order can be obtained from the Court, which will direct any suspected person with knowledge of the child’s whereabouts to come forward with that information.

A Commonwealth Information Order can also be sought, which results in a government department having to provide information about the child (e.g. Centrelink), or a Publication Order which results in the media being permitted to share information with the public regarding the child’s last known location (e.g. the family court website will display information publically).

 

When Children are Removed from Australia

Where a child has been removed from the country, the legal and administrative bodies of the Australian government assist in the speedy recovery of the child. Thankfully this is a very rare occurrence.

If you are seeking advice or wish to discuss any aspect of business or personal law, contact Julia Adlem at j.adlem@adelaidelegal.com or call Adelaide Legal on (08) 8410 9494.

 

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Julia Adlem

Managing Associate Lawyer

Julia Adlem Adelaide Lawyer
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Stefania Scarcella

Lawyer, LLB

Stefania Scarcella Adelaide Lawyer
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