The Child Maintenance and Other Payments Act 2008 (CMOPA 2008) introduces a number of enforcement powers where an absent parent fails to pay child support maintenance.
When enacted, s 27 of CMOPA 2008 will insert a new s 39B into the Child Support Act 1991 which gives the secretary of state power to apply to the magistrates’ court to disqualify a non-resident parent from holding or obtaining a travel authorisation.
A ‘travel authorisation’ is a UK passport (as defined by the Immigration Act 1971) or an ID card (issued under the Identity Cards Act 2006) that records that the person to whom it has been issued is a British citizen.
In what circumstances will such an application be made?
The secretary of state will be able apply to a court to disqualify a non-resident parent from holding/obtaining a travel authorisation if:
- he 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
- he is of the opinion that the non-resident parent has willfully refused or culpably neglected to pay child support maintenance.
What is meant by use of bailiffs or by means of a third party debt order or a charging order?
Bailiffs are often used to enforce judgments. When a bailiff is appointed he will attend the judgment debtor’s home or premises and where possible, seize and then sell goods to the value of the judgment.
A third party debt order is a method used to enforce a judgment where a third party owes money to the judgment debtor. Where a third party debt order is made by the court, the third party is required to make payment direct to the judgment creditor.
A charging order operates in a similar manner to a mortgage. It can be registered with the Land Registry and if the judgment debtor sells the property, if there is sufficient equity in the property, the monies owed under the judgment are paid to the judgment creditor, together with interest.
What matters will the court take into account when deciding whether to make an order?
When deciding whether to make an order disqualifying a person from holding or obtaining a travel authorisation, the court must inquire in the presence of the non-resident parent into:
- whether the non-resident parent needs a travel authorisation to earn a living;
- whether there has been willful refusal or culpable neglect on the part of the non-resident parent to pay the child support maintenance; and
- the non-resident parent’s means.
When will an order not be made?
If the court feels there has not been wilful refusal or culpable neglect on the part of the non-resident parent or if it chooses to commit him/ her to prison, it should not make an order.
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 disqualification from holding or obtaining a travel authorisation, the court should not question the liability order on which the application has been made or the original maintenance calculation upon which the liability order was made.
Where a non-resident parent disputes the liability order or the calculation, they should apply to the court to have it set aside.
Where a person is disqualified from holding or obtaining a travel authorisation, how long will the disqualification last?
Where a person is disqualified from holding/obtaining a travel authorisation they will be disqualified for the length of time set out in the court order, which cannot exceed two years. However, if after the disqualification period the arrears still remain outstanding it is open to the secretary of state to make another application to the court.
The court has the power to suspend an order disqualifying a person from holding/obtaining a travel authorisation where a non-resident parent agrees to pay the child support maintenance or if there are exceptional circumstances. Where an order is suspended the court can attach such conditions as it thinks just.
Where an order is made, what other provisions will the order contain?
Where an order is made, the amount owing under the liability order and the costs of making the application are stated as an aggregate figure. Costs are determined in accordance with regulations made by the secretary of state.
The order contains a provision requiring the non-resident parent to produce to the court any travel authorisation they may hold.
What will happen once an order has been made?
Where a travel authorisation is produced, the court will send it to a person prescribed in regulations made by the secretary of state.
The court will notify the secretary of state of any order it makes to disqualify a non-resident parent from holding or obtaining a travel authorisation, or where it allows an appeal against such an order.
Will the court have any other powers?
Once a court has made an order to disqualify a non-resident parent from holding /obtaining a travel authorisation, 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 an order be revoked or the length of the disqualification be reduced?
The court can revoke 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 secretary of state can make representations to the court in relation to the amount which should be paid before the order is revoked and the non-resident will be entitled to reply to any such representations.
Where the amount specified in the order is paid in full the court will revoke the order if the secretary of state or the non-resident parent makes such an application.
The court can, of its own volition, revoke an 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 the court revokes an order or reduces the period for which it has effect, it must notify the secretary of state.