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. The person or body who is to monitor the curfew will be specified in the order.
A Court will not be able to make a curfew order unless the Commission has notified it that suitable monitoring arrangements are in place, the Court is satisfied with such arrangements, and the consent of any third party whose co-operation is necessary for monitoring the order has been obtained. If the consent of a third party cannot be obtained then the Court will be entitled to treat the application for a curfew order as an application for committal to prison.
A non-resident parent may, in certain circumstances, be allowed to be absent from the place specified in the order during the curfew period.
Who will be responsible for the costs associated with a curfew order?
Where a curfew order is made, the Court will also make an order requiring the non-resident parent to pay the costs of the application and associated with the monitoring of the curfew order.
A curfew order will set out the aggregate sum due in respect of the child support maintenance arrears, the costs of the application and the costs associated with the monitoring of the curfew.
If the non-resident parent fails to pay such costs then the Commission will be entitled to recover such costs using the same powers it has to collect and enforce child support maintenance.
Will the Court have any other powers?
Once a Court has made curfew order against a non-resident parent 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 curfew order be revoked, suspended or varied?
The Court will have the power, upon receiving an application from either the non-resident parent or the Commission, to revoke, suspend or extend any existing suspension, or to allow the curfew to start at a later date or reduce the period of an 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, suspended or varied and the non-resident will be entitled to reply to any such representations.
Where the Court makes an order suspending or allowing the curfew to start at a later date, the Court will have the power to attach conditions to the order.
Where the amount specified in the order is paid in full the Court will be obliged to revoke the order if the Commission or the non-resident parent makes an application to revoke it.
The Court will be able, of its own volition, to postpone, suspend or revoke a curfew order or reduce the period for which it has effect, if money found during a search is paid towards the amount specified in the order.
If a non-resident parent is committed to prison, the curfew order will be suspended whilst they are in prison. The suspension will be lifted upon their release from prison.
What happens if a curfew order is breached?
If a non-resident parent breaches a curfew the Commission or the person responsible for monitoring the curfew can apply to the Court.
Where such an application is made the Court will be required to establish, in the presence of the non-resident parent, whether the curfew order has been breached without reasonable excuse. If the Court finds that it has been breached without reasonable excuse, the Court will have the power to issue a warrant to commit the non-resident parent to prison. Alternatively, the Court will be able to extend the period of the curfew order for up to six months.
If a non-resident parent is imprisoned they will be released if they pay the full amount owing under the curfew order.
If the non-resident parent makes a part payment, the Court will have the power to order their release from prison or reduce their sentence. The Commission will be entitled to make representations to the Court before such an order is made and the non-resident parent will be entitled to respond to any such representations.