The Child Maintenance and Other Payments Act 2008 established the Child Maintenance and Enforcement Commission and gives the Commission a number of enforcement powers where an absent parent fails to pay child support maintenance. One of these powers is the power to apply to the Magistrates’ Court for a curfew order against a non-resident parent.
The provision of the Act which gives the Commission such power is expected to come into force in 2010.
In what circumstances will such an application be made?
The Child Maintenance and Enforcement Commission will have the power to apply to the Court for a curfew order if:
- it has tried to recover the arrears through the use of bailiffs or by means of a third party debt order or a charging order;
- the arrears remain outstanding in full or in part; and
- it is of the opinion that the non-resident parent has wilfully refused or culpably neglected to pay child support maintenance.
For the purposes of the Child Maintenance and Other Payments Act 2008 the Commission is treated as having sought to recover arrears by way of a charging order if an interim charging order is in place and irrespective as to whether or not further action has been taken to recover the arrears.
What matters will the Court take into account when deciding whether to make an order?
When deciding whether to make a curfew order the Court will be required to inquire in the presence of the non-resident parent:
whether there has been wilful refusal or culpable neglect on the part of the non-resident parent to pay the child support maintenance; and
as to the non-resident parent’s means.
When will an order not be made?
If the Court is not of the opinion that there has been wilful refusal or culpable neglect on the part of the non-resident parent it will be prevented from making an order.
A Court will also be prevented from making a curfew order against a non-resident parent who is under the age of eighteen or against a non-resident parent who is in custody for any reason.
Will the Court be able to question the liability order on which the application has been made or the original maintenance calculation?
When considering an application for a curfew order, the Court will be prevented from questioning the liability order on which the application has been made. The Court will also be prevented from questioning the original maintenance calculation upon which the liability order was made.
Where a non-resident parent disputes the liability order or the calculation they will, therefore, have to make an application to the Court to set aside the liability order.
If a curfew order is made how long will it last for?
If a curfew order is made it will last for the length of time set out in the Court order, which cannot exceed 6 months. The 6 months will commence from the date of the curfew order unless the order specifies otherwise. However, if after the curfew has come to an end the arrears still remain outstanding in full it will be open to the Commission to make another application to the Court.
A curfew order will be limited to between two and twelve hours in any one day, although the Courts will be able to make an order for different periods and different places.
How will the hours of the curfew order be decided by the Court?
The Court will be required, in so far as is practicable, to ensure that the curfew imposed does not conflict with the non-resident parent’s religious beliefs or interfere with the times at which they normally work or attend an educational establishment.
What about the location of the curfew?
The Court will not be allowed to specify a curfew location outside of England or Wales.
How will a curfew be monitored?
A person or body will be appointed to monitor the curfew order. The curfew order may be monitored by a third party, for example, by a landlord. In such circumstances the landlord’s permission for a monitoring system to be installed in the non-resident parent’ home will need to be obtained.
For more information on:
- Who will be responsible for the costs associated with a curfew order?
- Will the Court have any other powers?
- Can a curfew order be revoked, suspended or varied?
- What happens if a curfew order is breached?