Kidnapping and failure to return a minor, A270 Revised Penal Code
Kidnapping and failure to return a minor – refers to the offense of deliberately failing to restore a minor to the latter’s parents or guardians after being entrusted custody.
1. Concept
Kidnapping and failure to return a minor – refers to the offense of deliberately failing to restore a minor to the latter’s parents or guardians after being entrusted custody.
a. Legal basis
Article 270. Kidnapping and failure to return a minor. – 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.
(Revised Penal Code)
2. Modes of commission
The following are the modes of committing the offense:
1) By deliberately failing to restore the minor person to the latter’s parents or guardians after being entrusted custody
a. Mode 1: Deliberate failure to restore minor
Elements of the crime of kidnapping and failure to return a minor:
1) The offender is entrusted with the custody of a minor person; and
2) The offender deliberately fails to restore the said minor to his parents or guardians. (People v. Marquez, G.R. No. 181440, 13 April 2011)
Element 1: Entrusted custody
For the 1st element, the offender has been entrusted with the custody of a minor person.
There are many ways in which this may happen. For example, relatives or friends may be entrusted with a minor person, as well as teachers, guards, and any other person. In short, it can be any person. What matters is that such person was given custody.
The fact of being given custody distinguishes this offense from kidnapping and serious illegal detention. If the offender was not given custody, then the offender may be committing the offense of kidnapping and serious illegal detention considering it involves a minor.
[T]he essential element of the crime of kidnapping and failure to return a minor is that the offender is entrusted with the custody of the minor, but what is actually being punished is not the kidnapping of the minor but rather the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. (People v. Tambien, G.R. No. 144316, March 11, 2002, Per Melo, J.)
People v. Tambien, G.R. No. 144316, March 11, 2002, Per Melo, J.:
• When Roselle entrusted Roselyn to [the Accused] before setting out on an errand for [the Accused] to look for ice water, the first element was accomplished and when [the Accused] refused to return the baby to Roselle despite her continuous pleas, the crime was effectively accomplished. In fine, we agree with the trial court’s finding that [the Accused] is guilty of the crime of kidnapping and failure to return a minor.
People v. Pastrana, G.R. No. 143644, August 14, 2002, Per Ynares-Santiago, J.:
• In the case at bar, there is no question that accused-appellant was entrusted with the custody of 9-year old Willy. Erma and her children trusted accused-appellant that they sent her money for the processing of Willy’s travel documents, and more importantly, they allowed Willy to stay in her apartment. Regardless of whether Willy stayed in accused-appellant’s apartment permanently or temporarily, the first element of the offense charged is satisfied because during said period Willy was entrusted to accused-appellant who undertook the responsibility of seeing to it that he was well-taken care of.
• As to the second element, accused-appellant contends that her failure to return Willy was never deliberate inasmuch as her inability to return him to his mother and/or guardian was due to his disappearance which was definitely beyond her control.
• The contention is without merit. It was actually her failure to heed Erma’s order on March 19, 1997 to return Willy to their residence in Sampaguita St., Malaria, Tala, Caloocan City, that consummated the offense. We agree with the finding of the trial court that accused-appellant deliberately failed to return Willy in order to use him as a pawn when her demands were turned down by Erma. The willfulness of accused-appellant’s omission is adequately established by the following circumstances, to wit: 1) accused-appellant’s representation that she had Willy treated by Dr. Rebecca Nakpil Miranda of Mary Johnston Hospital which was found to be false; 2) accused-appellant’s act of giving Doroteo P2,500.00 and not P3,000.00 as instructed by Erma; 3) accused-appellant’s use for her personal indebtedness of the money sent by Erma and her demand for additional P4,000.00 allegedly for the hospital expenses of Willy; 4) accused-appellant’s demand of P60,000.00 for the installation of a water purifier in her apartment allegedly for Willy’s safety, and for additional money for her job application in Singapore; and 5) the lapse of seven days during which accused-appellant willfully failed to return Willy to Caloocan, which is only an hour away from her residence in Tondo, until his disappearance.
Element 2: Deliberate failure
For the 2nd element, the deliberate failure to restore the minor to the latter’s parents or guardians is the gravamen of the offense.
After being given custody, the offender intentionally or willingly fails or refuses to return the minor. The intent should be present as the provision uses the word “deliberate”. Thus, if the offender merely overlooks the fact to return the minor, then there is no deliberate failure. For example, the offender may have simply been busy or pre-occupied with other matters that returning the minor did not come to mind. In such a case, there was no “deliberate failure.”
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. (People v. Tambien, supra.)
Said failure or refusal, however, must not only be deliberate but must also be persistent as to oblige the parents or the guardians of the child to seek the aid of the courts in order to obtain custody.12 The key word therefore of this element is deliberate. (People v. Ty, G.R. No. 121519, October 30, 1996, Per Kapunan, J.)
People v. Gutierrez, G.R. No. 81020, May 28, 1991, Per Feliciano, J.:
• It is clear that [the Accused] admitted the existence of the first element for she had not disputed the testimony on circumstances under which she obtained custody for the day of Hazel Elpedes on the morning of 13 July 1984. Furthermore, as pointed out by the trial court, it was perfectly in consonance with human experience that Lourdes Elpedes should have readily allowed [the Accused] to take Hazel temporarily because she is a relative by affinity who, until then, had not exhibited any conduct which might impair the trust normally reposed on a sister-in-law.
• We believe that the second element of the offense charged has been established by the prosecution’s evidence. In the first place, [the Accused’s] own conduct in leading Frank Elpedes and Pat. Deotoy to the Felipe residence in Intramuros, in an initial unsuccessful effort to recover the child, indicated her awareness of the probable whereabouts of the child. The logical conclusion is that she must have been the person responsible for originally leaving the child with the Felipe spouses. In the second place, the precise motive that [the Accused] might have had for bringing Hazel Elpedes to the Felipe spouses and leaving him with them, apparently for an indefinite period, is not an indispensable element of the offense charged. All that was necessary for the prosecution to prove was that she had deliberately failed to return the minor to his parents. But [the Accused] herself had testified that she had indeed left the child with the Felipe spouses in Intramuros. We find it very difficult to understand how [the Accused], even in her claimed disconsolate state, could have inadvertently left the child with the Felipe spouses in the latter’s home in Intramuros (starting from Herran St., in the opposite direction from the Nichols Airbase, where the child’s parents live). Moreover, [the Accused] did not pretend to have tried to return Hazel to his parents by retrieving him from the Felipe spouses in Intramuros.
3. Things to note
The following are some additional things to note about this offense.
a. Moral damages
[T]he crime of kidnapping and failure to return a minor under Article 270 of the Revised Penal Code is clearly analogous to illegal and arbitrary detention or arrest, thereby justifying the award of moral damages. (People v. Marquez, G.R. No. 181440, April 13, 2011, Per Leonardo-De Castro, J.)
People v. Bondoc, G.R. No. 98400, May 23, 1994, Per Bondoc, J.:
• For kidnapping and failure to return minor Carla May to her mother from whom the former was taken by appellant, the trial court correctly sentenced her to reclusion perpetua conformably with Art. 270 of The Revised Penal Code. This Court also finds appropriate to award moral damages to complaining witness Lucita Romero Corpuz and the amount of P10,000.00 is considered reasonable as reparation for the mental anguish and serious anxiety she suffered before Carla May was returned to her.
b. Nominal damages
People v. Marquez, G.R. No. 181440, April 13, 2011, Per Leonardo-De Castro, J.:
• The award of nominal damages is also allowed under Article 2221 of the New Civil Code which states that:
Article 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.
• It took Merano almost a year to legally recover her baby. Justine was only three months old when this whole debacle began. She was already nine months old when Merano saw her again. She spent her first birthday at the Reception and Study Center for Children of the Department of Social Welfare and Development.37 Evidently, Merano’s right as a parent which was violated and invaded must be vindicated and recognized, thereby justifying the award of nominal damages.
4. Distinguish from other offenses
This offense is distinguished from other offenses or crimes below.
a. Kidnapping and failure to return a minor vs Kidnapping and serious illegal detention
| Factors | Kidnapping and failure to return a minor | Kidnapping and serious illegal detention |
| Offended Party | Any person | Any person |
| Offender | Any person | Private individual |
| Overt Acts | Offender is entrusted with the custody of a minor person, and deliberately fails to restore the said minor to his parents or guardians. | Offender is a private individual who illegally kidnaps or detains another or in any other manner deprives the latter of his liberty; and, in the commission of the offense, any of the following circumstances is present: (a) The kidnapping or detention lasts for more than three (3) days; or, b) It is committed by simulating public authority; or, (c) Serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or, d) The person kidnapped or detained is a minor, female, or a public officer. (If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial.) |
| Other Comments | N/A | N/A |
4A. In relation to other offenses
N/A
5. Complex crime
N/A
5A. Special complex crime
N/A
6. Procedural
N/A
References
⦁ Title 9 – Crimes Against Personal Liberty, Book 2, Revised Penal Code
/Updated: August 20, 2023
