MF v LM (MC 83 of 2024) [2024] SCSC 219 (26 March 2024)

SllPRLiVl1<: COldU' OF SEYCHELLES Not Reportable 1 Redact Reportablel r2025] MC 83/2024 Petitioner In the matter of': (rep, by Joshua Revcra) And by Respondent In the presence of the ATTORNEY (;r':NLI~AL in its capacity (absent/unre /»esc n/e( /) as Min ist crc Puhliqllc Neutral Citation: Before: Summary: Heard: Delivered: (:\!J('~,)/2(J:24) [2025[ (26 March 2025), . I Carolus Appointment 19 lcbruary 26 March 2()25 01 guardian 202,") Sectioll 394 Civil Code ofSeycheJJes Act. ORDER A, The petition is dismissed, B, ror the avoidance ofdouht, the l'ctitioncr ,'IS the survi , ing parent olhcr minor SOil is the gll~lI'(li:lll o lthc said in terms o lArticlr :)<)1 ofthe Civil Codc olSeychelles Act, 2020, lUlLING CAROLUSJ [1] - (hereinafter referred to as the Petitioner) has applied to this Court lor an Order appointing her as the guardian of her minor son (here inaner rc ICITl'cito ,IS till' tV! iIHl r (' h iIll), The Pet ition is su pported by an Affidavit sworn by the Petitioner. Oihc I support illg documents were also filed in the registry of the Supreme born on 23J'd July 2016 Court. [2] The facts of this ease <ISaverred in the l'ctition and Affidavit in support thereof are that the mother and father or the [VIiuor Child (Ire the Petitioner and respectively, This is borne out by the Certificate of Birth of the Minor Child exhibited. The parents of the Minor Child were not married, The said (hereinafter referred to as the Deceased) passed away on 2JJ'd November ~(J 18 tiS SI'lOlVII by his Death Certificate which is exhibited, The Petitioner avers that the M inor Chi ld has been in her custody, care and control and that that she has been solely providing Ior him since the death of the Deceased, She avers that she is able to continue to take care olall his needs, [3] She <Ivers that it is necessary <Inti in till' hcst interests ofthe Minor Child that she is formally appointed as his legal guardian so as (0 enable her to legally act on his behalf, and to allow for unencumbered travel and prevent other legal impediments, [4] The Petitioner avers that she is able and willing to be appointed as, and to carry out the duties of. the Icg,1I guardian of' till: MinOl' Child and is not subject to any legal incapacity which prevents IIC! lrorn hl'illg so appointed. [5] In terms or the Pciition she PI',I:'>Stile Court guardian 01' the Minor Child: <1nd f'OI' such further Orders for an Order appointing her as the sole legal as this Court deems fit in the circumstances o lthis case. [6] The Auorney Genera! in his capacity tis Minisiere Publique was notified of the Petition but did not put ill un appearance at the hearing of the petition .. [7J At the hcaruu; the l'ctitioucr tesli lied 111~11 she works as a at the and that with her salary and the Minor Child's semi orphan benefit she IIHlll<lges to pro , ide Ill! him, The Petitioner and the Minor Child live in a bcdsi tter ncx t t( I the l'ct itioncr S mot her's house both of which are located on her mother's land, l lcr brother also lives with her mother, and they both help her with the Minor Child when there is (] need. lhc Minor Child's paternal grandmother also assists. [8] The Petitioner further iesti lied thut the deceased was an officer and is entitled to compensation I()I' his years ()I' SCI" icc, /\S such. upon his death, the Minor Child as his legal heir became entitled [0 such cumpcnsution. The Petitioner was advised by the that a guardian must be appointed to accept the compensation on behalfofthe Minor Child. [9] The legal provision Code or Seychelles uppl icablc to guardianship or minor childen is Article 391 of the Civil ,I\cl. :W]() which provides that "fA] minor is under the guardianship ofthe 1)(11'(>lIls ", II' therefore PilL' o l rh,: jlHlCllts dies, it follows that the surviving parent remains as the sole guardian. unless olcoursc the deceased parent was for some reason the sole guardian which is not the case here, In the present case, the father of the child has died and the mother who is the surviving parent has sole guardianship of the child. [10] Since the amendments brought ill hy till' Civil Code of Seychelles Act, 2020, guardianship of natural children is 110 different Irorn that of legitimate children. Previously, under the Civil Code ofSeychelles Aci. I 97(). Article 394 alinca 1 provided that: I, children ,\1/(/(1 have u ,l!,lIordiol1 /1/e,<J;ili/)/(/le children, Ijllw}_iljJJ('1(//7(1 nunlu-r I!L II/(' <;'£11Ic1, tlu: the P"I'('I/I\ 11111.1' t/('('i((<, ( '11/11'/ in the same manner as legitimate illegilimale child have both recognised the \,I'liich (I/Ihem . I'h(//I become guardian. Ifonly one of has 1'(:'co,l!,lIis('t/ his child lie shall he his guardian. [11] Previously therefore. where till' father CIne!mother or a natural minor child had recognised that child, and ()II~:01' them died. there W<lS(1 need and it was the practice, for the surviving parent to be declared ,IS the gll()I'(. Ii'lIl 01' the child upon application made to the court, for the surviving parent 0 be able to represent the child in legal or other matters and to administer the child' s propcrtv . With the change or the law, there is no longer a need to do so, unless as stated. the dCCe<l'iL'LIparcn: had sole guardianship, which is not the case here. Hence there is 110 need 1'01' tile mother of the Minor Child to be appointed as his guardian for her to be able to accept the compensation payment on his behalf As the Minor Child's guardian she has a tlut,\ 10 protect the interests ofthe ward (Article 416) and administer his property, [12] In the circumstances alit! lor the reasons gi\'en above, I dismiss the petition, [13] For the avoidance olcloubt. it hems repeating ,IS IIll' slin iving that, the Petitioner parent or her minor is the guardian son of the said ill terms 01' Article J<) I o l' the Civil Code of Seychelles Act, 2020, Signed, elated <Inc!delivered at lie du I>OI't011 :2()lh March 2025, Carolus J