Family Code > CHAPTER TWELVE MINORS 2

Section 2. Organs of Protection of Minors

Article 219.- Authority of Parents

The father and the mother are, during their marriage, jointly guardians and tutors of their minor children.

Article 220-Default of one of the Parents.

1) In case of death, disability , unworthiness or removal of one of the parents the one who remains shall alone exercise such functions.

2) The mothers shall exercise such functions where the father of the child is unknown.

Article 221.- Divorce of Parents.

1) Where the spouses decide to divorce by mutual consent in accordance with Article 77 of this Code, they shall decide by agreement regarding the tutor and guardian of their children.

2) Where, in any case of divorce, the spouse did not agree on the tutorial and guardianship of their children, the court which decides the divorce shall also decide the tutor and guardian of children.

Article 222-Testmentary Guardian or Tutor (1) Principle

1) The surviving parent of a minor may, by a last Will, stipulate who shall be guardian or tutor of the child after his death.

2) The surviving parent may also restrict the powers of the guardian or tutor, or subject the exercise of such powers to specified conditions.

Article 223- (2) Conditions for Appointment.

The right referred to in Article 222 shall appertain to the father or mother of the minor only where he or she exercised during his or her lifetime the functions of guardian or tutor of the child, or where he or she had been relieved of such functions his or her request.

Article 224- (3) Application to the Court.

The restrictions or conditions imposed by the father or the mother on the powers of the guardian or tutor may, where the interest of the minor so requires, be revoked or modified by the court.

Article 225-Relatives Called to Exercise the Functions of Guardian or Tutor (1) Order to be Followed.

Where the child no longer has his father and mother, and in default of a valid appointment made by the survivor, the functions of guardian of tutor of the child shall devolve, by virtue of the law, on the following persons:

(a) Ascendants of the child;

(b) In their default , the brothers or sisters of the child who have attained majority;

Article-226-(2) Possible Modification of such Order.

1) Any relative of the child by consanguinity or by affinity may apply that the functions of guardian or tutor of the child be accorded to him instead of the person who should perform such functions by virtue of Article 225.

2) Such application shall be made to the family members mentioned under Article 225, or, in the absence of agreement, to the court.

3) Such application shall be made within two months from the day on which the guardian or tutor has been vested with his functions.

4) The application shall be allowed or dismissed based solely on the interest of the child.

Article 227- Where there is no Relative Enabled in terms of law.

1) Where by applying the preceding Articles, a child remains without a guardian or tutor, the functions may be entrusted such person as may be appointed by the court.

2) In deciding such case the court may take congnizance of the matter or on the application of any interested party whether he is a relative of the child or not.

3) A government organ who has the authority to follow up the security of children may also lay the matter before the court.

Article 228- Appointment by the Court (1) Relative of the Minor, by Consanguinity or Affinity.

The court shall appoint, as far as possible, as guardian or tutor a near relative of the minor, by consanguinity or affinity, fit to perform such functions and willing to perform them.

Article 229- (2) Institution of Assistance.

The functions of guardian or of tutor may, where necessary, be entrusted by the court to an institution of assistance established for such purpose.

Article 230- Assimilated Cases

Where a person is not in a position to exercise the functions of guardian and tutor by operation of the law or for any other reason, he shall be deemed to be not existing for the purpose of the preceding Articles.

Article 231- Identity of Guardian or of Tutor.

1) As a rule, the person to whom the care of the person of the minor has been entrusted shall at the same time be his tutor.

2) The appointment of a guardian or of a tutor of the child, made by the surviving father or mother or by the court shall apply to both functions, unless the contrary results from the circumstances of the case.

Article 232- Right given to Father and Mother.

The father or the mother may, where they think fit, appoint a tutor to the child, reserving to

themselves the functions of guardian.

Article 233-Right given to the Court

The court may for good cause appoint as tutor a person other than the guardian, where it has the right to make such appointment.

Article 234-Tutor ‘’ad hoc’’ (1) Conflict of Interest between Tutor and Minor.

1) Where there is conflict of interest between the tutor and the minor, a tutor ‘’ad hoc’’ shall be appointed to the latter by the court.

2) The appointment of a tutor “ad hoc” shall be made on the application of the tutor or one of the ascendants, or brothers or sisters of the minor who has attained majority.

Article 235-(2) Conflict of Interests of Several Minors.

1) The Provisions of Article 234 shall apply where there is a conflict between the interests of several minors of whom the tutor is the common representative.

2) The conflicting interests shall in such cases be settled between the tutor and the tutor ‘’ad hoc’’

Article 236-Commencement of Functions.

1) The functions of guardian and of tutor shall commence from the appointment of the guardian or tutor by virtue of the law or by the decision of the court.

2) No liability shall be incurred by the guardian tutor so long as he is not aware of the circumstances under which such functions devolve on him.

Article 237- Compulsory Nature or Functions.

The functions of guardian or tutor of the minor are compulsory for the person who is vested with them.

Article 238-Application for Exemption.

1) A person may apply to the court to be exempted from such functions if the performance thereof entails to him particular difficulties or inconveniences.

2) The guardian and the tutor may on the same conditions apply to be relieved of the functions assumed by them.

Article 239.- Legal Exemptions.

Notwithstanding the provisions of this Code regarding the appointment of guardian or tutor, the following persons shall not be bound to take up the functions of guardian or tutor, upon a mere declaration on their part, except as regards their own children.

(a) Any person who has completed his sixty-fifth year;

(b) Soldiers in active service.

Article 240-Obligation to Exercise such Functions Provisionally.

1) The guardian or tutor who puts forward an objection or a case of exemption shall exercise his functions until a new guardian or tutor has been appointed.

2) The same shall apply to the guardian or tutor whose appointment is impugned.

Article 241- Termination of Functions.

1 The functions of guardian and of tutor shall cease where the child dies, attains, majority, or is emancipated.

2. They shall cease where the guardian o the tutor dies, o becomes incapable, or unworthy, or is removed.

3. They shall cease where a new guardian or tutor is appointed to the minor.

Article 242. - In capacities(1) Minor.

A minor is incapable of exercising the function of guardian or of tutor except as regards his own children.

Article 243. - (2) judicially (1) interdicted Persons

1) A Person is incapable of being a guardian or tutor of a minor if he is under a judicial interdiction.

2) Where a person, during the exercise of such functions, is judicially interdicted, his tutor shall without delay inform the person who, by virtue of the law, is to replace interdicted person in those functions.

3) In default of such person, he shall apply to the court for another person to be appointed in place of the interdicted person.

Article 244 Unworthiness.

1) A person may be declared by the court unworthy of exercising the functions of guardian or tutor, where, he is sentenced for a criminal offence to a punishment restrictive of personal liberty, or to capital punishment.

2) The court may, in passing such sentence, declare the unworthiness of the convicted person to the extent which it thinks fit, having regard to the circumstances,

Article 245 Removal (1) Guardian.

1) The guardian of a minor may be removed by the court where the minor does not receive the care which his condition requires, a morally sound education or an instruction which accords with this disposition.

2) For this purpose, regard shall be had to the environment in which the guardian lives and all the circumstances of the case.

3) The guardian may in particular be removed by the court where the minor has committed a criminal offence and it appears that his behavior is due to bad education or to lack of education on the part of his guardian.

Article 246 (2) Tutor

The tutor may be removed by the court, where it appears that he administers badly the property of the minor, where he does not comply with the directions validly given to him by the person or authority who entrusted him with such functions, or where his insolvency has been judicially established.

Article 247. - (3) Removal of Ascendants

1) The court shall declare only with extreme caution the removal of the mother or of the father or of the other ascendants as guardians or tutors of their children.

2) The court may revise its decision any time on the application of the person who has been removed from the position of guardianship or tutorship.

Article 248. - (4) Procedure.

1) An application for the removal of the guardian or of the tutor may be made by any interested person, or by the public prosecutor.

2) Before declaring the removal of the guardian or the tutor, the court shall enable the latter to give his reasons.

3) Where the court proceeds under Sub- Art (2) of this Article, it shall give appropriate provisional order when ever it thinks that additional danger may entail to the person or property of the minor.

Article 249. - Duties of the Court.

1) Where the court is to appoint or to remove a person as guardian or tutor of a minor, it shall, before making its decision, consult, in so far as possible, the ascendants ad the brothers and sister of the child who have attained majority,

2) Where it thinks fit, it may hear the minor himself.

3) The court shall decide having regard solely to the interest of the minor and without being bound by the information which it has obtained.

Article 250. - Tutor may not be Remunerated.

1) The functions of guardian or tutor constitute a gratuitous office.

2) A specified amount of compensation may be granted to the guardian or to the tutor where the administration of the property of the minor takes a considerable part of his time.

3) Such compensation may only be taken from the income of the minor and may not exceed one third of such income.

Article 251. – Personal Nature of the function .

1) The functions of guardian or tutor constitute a personal office which does not pass to the heirs of the guardian or tutor.

2) The heirs shall be liable only for the mismanagement carried out by the person whom they succeed, within the limits specified in the law of successions.

Article 252. - Duties of Heirs.

1) The heirs of the guardian or tutor shall, without delay, inform of his death to the person who is , by virtue of Article 225, to replace him in such functions.

2) In default of such person they shall apply to the court to appoint a new guardian or tutor.

3) Until they have fulfilled their obligations under Sub-Article (1) and (2) of this Article, they shall remain liable to the minor and third parties.

Article 253. - Proof of Capacity of Guardian or Tutor.

The guardian or tutor may apply to the court to be given a document enabling him to prove his capacity where necessary.

Article 254. - Analogy with the Tutor.

The provisions of this Code relating to Tutors shall also apply to Tutors “ad hoc” .

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