When to file charges for kidnapping and failure to return a minor

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Persida Acosta

Persida Acosta

Dear PAO,
My friend is a single mother who has a 9-year-old son. She went to Cebu last month for a seminar. Since her parents are both really old and her son’s father abandoned them a long time ago, she opted to leave her son with her former officemate, because the latter offered to look after her son while she was away. They agreed that my friend will fetch his son from her house upon her return from the seminar.

When my friend came back, she immediately contacted her former officemate who told her that she will bring her son to her work the next day. Unfortunately, her former officemate did not show up. My friend went to her house but she was not there. She again contacted her, but the latter was unwilling to return the child and kept on giving so many excuses.

My friend is now contemplating of filing a complaint against her former officemate. Some people advised her to file a complaint for kidnapping and serious illegal detention. Do you think this is correct? Please advise.
Libby

Dear Libby,
The crime of kidnapping and serious illegal detention is one of the crimes against liberty. It is committed when any private individual kidnaps or detains another, or in any other manner deprives him of his liberty, under any of the following circumstances: (1) If the kidnapping or detention shall have lasted more than three days; (2) If it shall have been committed simulating public authority; (3) If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made; or (4) If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer (Article 267, Revised Penal Code).


In order to hold a person criminally responsible under Article 267 of the penal code, it is imperative to prove that he has taken and has detained another and such act of taking and detention be unlawful or illegal. If, for instance, it cannot be clearly shown that the taking is unlawful, then it cannot be said that the crime of kidnapping is committed.

In the situation you have presented, there is no clear showing that your friend’s son was unlawfully taken from her, for which reason, we cannot recommend the filing of a complaint for kidnapping and serious illegal detention under Article 267 of the same law.

On the contrary, you mentioned that your friend entrusted her son with her former officemate while she was away for a seminar, only that the latter failed and is now seemingly refusing to return the child despite several demands. In that case, we believe that the more appropriate complaint to file is kidnapping and failure to return a minor because Article 270 of the Revised Penal Code specifically provides, “The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.” The case of People of the Philippines vs. Marquez (G.R. No. 181440, April 13, 2011) may serve as a guiding principle:

“x x x This court, in elucidating on the elements of Article 270, stated that while one of the essential elements of this crime is that the offender was entrusted with the custody of the minor, what is actually being punished is not the kidnapping but the deliberate failure of that person to restore the minor to his parents or guardians. As the penalty for such an offense is so severe, the court further explained what “deliberate” as used in Article 270 means: Indeed, the word deliberate as used in Article 270 of the Revised Penal Code must imply something more than mere negligence–it must be premeditated, headstrong, foolishly daring or intentionally and maliciously wrong. x x x”

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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