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 to disqualify a non-resident parent from holding or obtaining a travel authorisation.
The provision of the Act which gives the Commission such power is expected to come into force in 2010.
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 Child Maintenance and Enforcement Commission will have the power to apply to a Court to disqualify a non-resident parent from holding or obtaining a travel authorisation 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.
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. A charging order can be registered with the Land Registry and if and when 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 (the person who is owed the money) together with interest from the date of the charging order. Obtaining a charging order is a two stage process, which involves applying for an interim charging order and then subsequently a final charging order. 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 an Order disqualifying a person from holding or obtaining a travel authorisation the Court will be required to inquire in the presence of the non-resident parent:
- whether the non-resident parent needs a travel authorisation in order to earn a living;
- 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 an order disqualifying a person from holding or obtaining a travel authorisation at the same time as making an order to commit that person to prison.
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 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.
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 or 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 has come to an end and the arrears still remain outstanding it will be open to the Commission to make another application to the Court.
The Court will have the power to suspend an order disqualifying a person from holding or 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 will be able to 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 will be stated as an aggregate figure. Costs will be determined in accordance with regulations made by the Secretary of State.
The order will contain a provision requiring the non-resident parent to produce to the Court any travel authorisation that person 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 Commission 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 or 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 will have the power to 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 Commission will be able to 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 have to revoke the order if the Commission or the non-resident parent makes an application to revoke the order.
The Court will be able, of its own volition, to 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 will be required to notify the Commission.