Under the Child Support Act 1991 (CSA 1991), s 40 (as amended by the Child Maintenance and Other Payments Act 2008 (CMOPA 2008)), the Secretary of State has the power to apply to the magistrates’ court for a warrant to commit a non-resident parent to prison for failure to pay child support maintenance.
When can an application be made?
Such an application can be made if the arrears remain outstanding in full or in part after the Secretary of State has tried to:
- levy the arrears by distress and sale of the non-resident parent’s goods in accordance with CSA 1991; or
- to recover the arrears by means of a third party debt order or a charging order.
Power of the court
On such an application, the court must, in the presence of the defaulting parent, inquire as to the defaulting parent’s means and assess whether there has been wilful refusal or culpable neglect on his part.
If the court believes there has been wilful refusal or culpable neglect on the part of the liable person it may:
- issue a warrant of commitment against him; or
- fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions as it thinks fit.
No warrant can be issued to someone under the age of 18.
When considering an application for a warrant committing a non-resident parent to prison, the court is not allowed to question 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.
What is the effect of the warrant?
If a warrant is issued, it orders the defaulting parent:
- to be imprisoned for a specified period; but
- to be released (unless he is in custody for some other reason) on payment of the amount stated in the warrant.
The maximum period of imprisonment which can be imposed is six weeks, but the jail term may be reduced where there is part payment of the amount in respect of which the warrant was issued.
If a warrant is issued, s 80 of the Magistrates’ Courts Act 1980 applies, meaning the defaulting person can be searched and any money on him can be seized and put towards the outstanding debt. The court will not, however, allow any money found on a search to be seized if it is satisfied that the money does not belong to the person searched.
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.