Parents sent to prison for non-payment of Child Maintenance

The Child Support Act 1991 gave the Secretary of State the power to apply to the Magistrates’ Court to commit a non-resident parent to prison 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 imprisonment of non-resident parents for 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 issue of a warrant committing a non-resident parent to prison 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; 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 the issue of a warrant committing a non-resident parent to prison 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 commit a non-resident parent to prison?

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 and the Child Maintenance and Other Payments Act 2008) 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 a warrant not be issued?

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 and the Child Maintenance and Other Payments Act 2008) from issuing a warrant. 

A Court is also prevented from issuing a warrant against a non-resident parent who is under the age of eighteen.

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 warrant is issued how long will the non-resident parent be imprisoned for?

If a warrant is issued the non-resident parent will be imprisoned for the period specified in the warrant, which cannot exceed 6 weeks. However, if the non-resident parent pays the amount stated in the warrant he will be released from prison.  

The length of the period of imprisonment may be reduced if the non-resident parent makes a part payment of the arrears.

Who will be responsible for the costs associated with the application for the issue of a warrant?

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

A warrant will set out the aggregate sum due in respect of the child support maintenance arrears and in respect of the costs of commitment.

Does the Court have any other powers?

Once a Court has issued a warrant committing a non-resident parent to prison 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.