The Child Support Act 1991 gave the Secretary of State the power to make a “deductions from earnings order” where a non-resident parent failed 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.
Where a deductions from earnings order is made the employer will be required to make deductions from the non-resident parent’s earnings and pay those amounts to the Commission.
The power to make a deductions from earnings order is exercised by the Commission itself and the legislation does not require it to make an application be made to the Court.
The Child Maintenance and Other Payments Act 2008 contains some new provisions which relate to deduction from earnings orders and which are expected to come into force in 2010.
The Child Maintenance and Other Payments Act 2008 also gives the Secretary of State the power to make further wide ranging regulations relating to deductions from earnings.
The intention is to pilot the use of deduction from earnings orders as a primary method of collection for employed non-resident parents.
When can a deduction from earnings order be made?
The current position
The Commission can make a deduction from earnings order against a person who is liable to make payments of child support maintenance to secure the payment of any amount due under the maintenance assessment in question.
A deduction from earnings order can be made in respect of arrears of child support maintenance and/ or amounts of child support maintenance which will become due in the future.
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 definition of “earnings” will be broadened and will include the following:
- wages or salary;
- pension payments including any annuity payable for the purpose of providing a pension;
- periodical payments which are compensation for loss of employment or reduced remuneration;
- statutory sick pay.
Furthermore any person paying one of these sums will be treated as a non-resident parent’s “employer”.
Will the Commission be able to seek to recover the arrears by a method other than a deduction from earnings order?
Whilst the intention is for deduction from earnings orders to be used as a primary method of collection for employed non-resident parents, the Commission will not be precluded from using other methods of enforcement. However, a non-resident parent will have a right of appeal to the Magistrates’ Court against a decision that there is no good reason not to use a deduction from earnings order to collect maintenance.
Under the Child Maintenance and Other Payments Act 2008 when considering an appeal, the Court will be prevented from questioning the maintenance calculation by reference to which the deduction from earnings order was made.
What if an employer fails to comply with a deductions from earnings order?
If an employer fails to comply with the requirements of a deductions from earnings order he will commit a criminal offence, which is punishable by a fine.
However, the employer will have a defence if he can prove that he took all reasonable steps to comply with the requirements of the deductions from earnings order.