Parents disqualified from driving for non-payment of Child Maintenance

The Child Support Act 1991, as amended by the Child Support, Pensions and Social Security Act 2000, gave the Secretary of State the power to apply to the Magistrates’ Court for an order disqualifying a non-resident parent from holding or obtaining a driving licence for failure to pay child support maintenance. The Child Maintenance and Other Payments Act 2008 established the Child Maintenance and Enforcement Commission and transferred this power to the Commission.

The Child Maintenance and Other Payments Act 2008 contains some new provisions which relate to the disqualification of non-resident parents from holding or obtaining driving licences due to non-payment of child support maintenance and which are expected to come into force in 2010.

In what circumstances will such an application be made?

The current position

Currently the Child Maintenance and Enforcement Commission has the power to apply to the Court for the an order disqualifying a non-resident parent from holding or obtaining a driving licence if: 

  • it has tried to levy the arrears by distress and sale of the non-resident parent’s goods in accordance with the Child Support Act 1991, as amended by the Child Support, Pensions and Social Security Act 2000; or
  • it has tried to recover the arrears by means of a third party debt order or a charging order; and
  • the arrears remain outstanding in full or in part.

The position under the Child Maintenance and Other Payments Act 2008

When the new provisions of the Child Maintenance and Other Payments Act 2008 come into force the Child Maintenance and Enforcement Commission will have the power to apply to the Court for an order disqualifying a non-resident parent from holding or obtaining a driving licence 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 will be 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 disqualify a non-resident parent from holding or obtaining a driving licence?

When deciding whether to issue a warrant committing a non-resident parent to prison the Court will be required (by both the Child Support Act 1991, as amended, and the Child Maintenance and Other Payments Act 2008) to inquire in the presence of the non-resident parent:

  • whether the non-resident parent needs a driving licence to earn a living;
  • 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 a disqualification order not be granted?

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 is prevented (by both the Child Support Act 1991, as amended, and the Child Maintenance and Other Payments Act 2008) from making a disqualification order.

Will the Court be able to question the liability order on which the application has been made or the original maintenance calculation?

Under the Child Maintenance and Other Payments Act 2008 when considering an application for a warrant committing a non-resident parent to prison, 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 disqualification order is made how long will the non-resident parent be disqualified from driving for and what happens to their driving licence?

If a disqualification order is made the non-resident parent will be disqualified from driving for the period specified in the disqualification order, which cannot exceed 2 years. The Court may, however, make a disqualification order but suspend its operation until such time and on such conditions as it thinks just.

If at the end of the disqualification period the non-resident parent has still not paid the arrears it is open to the Commission to make a further application for a disqualification order.

Where a disqualification order is made the non-resident parent will be ordered to produce to the Court any driving licence held by them together with its counterpart.

Who will be responsible for the costs associated with an application for a disqualification order?

Where a disqualification order is made, the Court will also make an order requiring the non-resident parent to pay the costs of the application.

A disqualification order will set out the aggregate sum due in respect of the child support maintenance arrears and in respect of the costs of the application for the disqualification order.

Does the Court have any other powers?

Once a Court has made a disqualification order it will have the power to search that person.

If during any such search money is found on the person the Court will have the power to take that money and put it towards the amount due.

Can a disqualification order be revoked or varied?

The Court will have the power to make an order substituting a shorter period of disqualification or to revoke a disqualification order where a non-resident parent makes part payment of the amount stated in the order. In such circumstances the Commission will be able to make representations to the Court in relation to the amount which should be paid before the order is revoked or varied and the non-resident parent will be entitled to reply to any such representations.

Where the amount specified in the order is paid in full the Court will be obliged to revoke the order if an application is made to revoke it.