Parental Child Abduction
When it comes to Parental Child Abduction matters, the first question commonly asked is if the country that you are residing in is a party to the Hague Convention (Civil Aspects of International Child Abduction). The Hague Convention is a multilateral treaty that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
However, Malaysia is not a party to the Hague Convention. Hence, parental child abduction cases from other countries to Malaysia or from Malaysia to other countries can be difficult to resolve as other countries' governments cannot force the abducting parent, or seek Malaysia government assistance to return the child back to their residing country.
To avoid any complications, it is always prudent to obtain a protection order to prevent any parental child abduction. Section 100 of the Law Reform Act enables the court to restrain any act of taking the child out of Malaysia upon the application of either the father or mother of a child of any interested person. This application can be made at any stage where any matrimonial proceeding is pending. The Court may grant an injunction order restraining the non-custodial parent from taking the child out of Malaysia or the allowance of the act of taking the child may be subject to any condition or undertaking as the Court may think fit. Once the Court has granted the order, the failure by the parties to comply with the order is punishable as an act of contempt of the Court.
Is Parental Child Abduction amounts to kidnapping?
The act of parental child abduction becomes a criminal offence in Malaysia when there is an order given by the Court granting the right of custody of the child to a particular parent or the Court has granted an order prohibiting the child to be brought outside Malaysia. Under Section 361 of the Penal Code states that whoever takes or entices any minor under 14 years of age if a male, or under 16 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
However, In the absence of a Court order granting the right of custody of the child to a parent, the abducting parent cannot be said to have kidnapped his/her own Child. This is because both parents shall have equal custodian rights of the child, unless the Court grants an order saying otherwise.
It amounts to kidnapping under section 361 of the Penal Code, if a non-custodial parent takes away the child from the custodial parent when there is a Court Order granting the right of the custody of the child to the custodial parent. However, there is an exception to section 361 of the Penal Code.