Office of Public Sector Information
PART 3 continued
(3) Once the relevant period has ended, any other order under section 32F shall operate as an instruction to the third party at which it is directed—
(a) if the amount due to the liable person is less than the remaining amount, to pay to the Commission the amount due to the liable person; and
(b) otherwise, to deduct from the amount due to the liable person and pay to the Commission the remaining amount.
(4) If an amount of arrears specified in the order remains unpaid after any payment required by subsection (3) has been made, the order shall operate until the relevant time as an instruction to the third party—
(a) to pay to the Commission any amount (not exceeding the remaining amount) due to the liable person; and
(b) not to do anything else that would reduce any amount due to the liable person.
(5) This section has effect subject to regulations made under sections 32I(1) and 32J(2)(c).
(6) In this section—
“the relevant time” means the earliest of the following—
the time at which the remaining amount is paid;
the time at which the order lapses or is discharged; and
the time at which a prescribed event occurs or prescribed circumstances arise;
“the remaining amount”, in relation to any time, means the amount of arrears specified in the order under section 32F which remains unpaid at that time.
(1) The Secretary of State may by regulations make provision as to circumstances in which things that would otherwise be in breach of sections 32G(1) and (2) and 32H(2)(b) and (4)(b) may be done.
(2) Regulations under subsection (1) may require the Commission’s consent to be obtained in prescribed circumstances.
(3) Regulations under subsection (1) which require the Commission’s consent to be obtained may provide for an application for that consent to be made—
(a) by the deposit-taker or third party at which the order under section 32E or 32F is directed;
(b) by the liable person; and
(c) if the order is made in respect of a joint account, by any of the other account-holders.
(4) If regulations under subsection (1) require the Commission’s consent to be obtained, the Secretary of State shall by regulations provide for a person of a prescribed description to have a right of appeal to a court against the withholding of that consent.
(5) Regulations under subsection (4) may include—
(a) provision with respect to the period within which a right of appeal under the regulations may be exercised;
(b) provision with respect to the powers of the court to which the appeal under the regulations lies.
(1) The Secretary of State may by regulations make provision with respect to orders under section 32E or 32F.
(2) The regulations may, in particular, make provision—
(a) as to circumstances in which amounts standing to the credit of an account are to be disregarded for the purposes of sections 32E, 32G and 32H;
(b) as to the payment to the Commission of sums deducted under an order under section 32F;
(c) allowing a deposit-taker or third party at which an order under section 32F is directed to deduct from the amount standing to the credit of the account specified in the order, or due to the liable person, a prescribed amount towards its administrative costs before making any payment to the Commission required by section 32H;
(d) with respect to notifications to be given to the liable person (and, in the case of an order made in respect of a joint account, to the other account-holders) as to amounts deducted, and amounts paid, under an order under section 32F;
(e) requiring a deposit-taker or third party at which an order under section 32E or 32F is directed to supply information of a prescribed description to the Commission, or to notify the Commission if a prescribed event occurs or prescribed circumstances arise;
(f) for the variation of an order under section 32E or 32F;
(g) for an order under section 32E or 32F to lapse in such circumstances as may be prescribed;
(h) as to the revival of an order under section 32E or 32F in such circumstances as may be prescribed;
(i) allowing or requiring an order under section 32E or 32F to be discharged.
(3) Where regulations under subsection (1) make provision for the variation of an order under section 32E or 32F, the power to vary the order shall not be exercised so as to increase the amount of arrears of child support maintenance specified in the order.
(4) The Secretary of State may by regulations make provision with respect to priority as between an order under section 32F and—
(a) any other order under that section;
(b) any order under any other enactment relating to England and Wales which provides for payments to be made from amounts to which the order under section 32F relates;
(c) any diligence done in Scotland against amounts to which the order under section 32F relates.
(5) The Secretary of State shall by regulations make provision for any person affected by an order under section 32F to have a right to appeal to a court against the making of the order.
(6) On an appeal under regulations under subsection (5), the court shall not question the maintenance calculation by reference to which the order under section 32F was made.
(7) Regulations under subsection (5) may include—
(a) provision with respect to the period within which a right of appeal under the regulations may be exercised;
(b) provision with respect to the powers of the court to which the appeal under the regulations lies.
(1) A person who fails to comply with the requirements of—
(a) an order under section 32E or 32F; or
(b) any regulation under section 32J which is designated by the regulations for the purposes of this paragraph,
commits an offence.
(2) It shall be a defence for a person charged with an offence under subsection (1) to prove that the person took all reasonable steps to comply with the requirements in question.
(3) A person guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding level two on the standard scale.”
After section 32K of the Child Support Act 1991 (inserted by section 23 of this Act) insert—
(1) The Commission may apply to the court, on the grounds that a person—
(a) has failed to pay an amount of child support maintenance, and
(b) with the intention of avoiding payment of child support maintenance, is about to make a disposition or to transfer out of the jurisdiction or otherwise deal with any property,
for an order restraining or, in Scotland, interdicting the person from doing so.
(2) The Commission may apply to the court, on the grounds that a person—
(a) has failed to pay an amount of child support maintenance, and
(b) with the intention of avoiding payment of child support maintenance, has at any time made a reviewable disposition,
for an order setting aside or, in Scotland, reducing the disposition.
(3) If the court is satisfied of the grounds mentioned in subsection (1) or (2) it may make an order under that subsection.
(4) Where the court makes an order under subsection (1) or (2) it may make such consequential provision by order or directions as it thinks fit for giving effect to the order (including provision requiring the making of any payments or the disposal of any property).
(5) Any disposition is a reviewable disposition for the purposes of subsection (2), unless it was made for valuable or, in Scotland, adequate consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of an intention to avoid payment of child support maintenance.
(6) Subsection (7) applies where an application is made under this section with respect to—
(a) a disposition or other dealing with property which is about to take place, or
(b) a disposition which took place after the making of the application on which the maintenance calculation concerned was made.
(7) If the court is satisfied—
(a) in a case falling within subsection (1), that the disposition or other dealing would (apart from this section) have the consequence of making ineffective a step that has been or may be taken to recover the amount outstanding, or
(b) in a case falling within subsection (2), that the disposition has had that consequence,
it is to be presumed, unless the contrary is shown, that the person who disposed of or is about to dispose of or deal with the property did so or, as the case may be, is about to do so, with the intention of avoiding payment of child support maintenance.
(8) In this section “disposition” does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise.
(9) This section does not apply to a disposition made before the coming into force of section 24 of the Child Maintenance and Other Payments Act 2008.
(10) In this section “the court” means—
(a) in relation to England and Wales, the High Court;
(b) in relation to Scotland, the Court of Session or the sheriff.
(11) An order under this section interdicting a person—
(a) is effective for such period (including an indefinite period) as the order may specify;
(b) may, on application to the court, be varied or recalled.”
After section 32L of the Child Support Act 1991 (c. 48) (inserted by section 24 of this Act) insert—
(1) If it appears to the Commission that a person has failed to pay an amount of child support maintenance, it may make an order against the person in respect of that amount.
(2) An order under subsection (1) (a “liability order”) may be made in respect of an amount due under a maintenance calculation which is the subject of an appeal only if it appears to the Commission—
(a) that liability for the amount would not be affected were the appeal to succeed, or
(b) where paragraph (a) does not apply, that the making of a liability order in respect of the amount would nonetheless be fair in all the circumstances.
(3) A liability order shall not come into force before—
(a) the end of the period during which an appeal can be brought under section 20 against the making of the order, and
(b) if an appeal is brought under section 20, the time at which proceedings on the appeal (including any proceedings on a further appeal) have been concluded and any period during which a further appeal may ordinarily be brought has ended.
(4) Where regulations have been made under section 29(3)(a), a person liable to pay an amount of child support maintenance is to be taken for the purposes of this section to have failed to pay the amount, unless it is paid to or through the person specified in, or by virtue of, the regulations for the case in question.
(1) The Secretary of State may by regulations make provision with respect to liability orders.
(2) Regulations under subsection (1) may, in particular—
(a) make provision about the form and content of a liability order;
(b) make provision for a liability order not to come into force if, before it does so, the whole of the amount in respect of which it is made is paid;
(c) make provision for the discharge of a liability order;
(d) make provision for the revival of a liability order in prescribed circumstances.”
In section 36 of the Child Support Act 1991 (enforcement in county courts), in subsection (1) (under which the amount in respect of which a liability order is made is recoverable by a third party debt order or charging order as if it were payable under a county court order, but only if a county court so orders), the words “, if a county court so orders,” are omitted.
Before section 40 of the Child Support Act 1991 (c. 48) insert—
(1) The Commission may apply to the court for an order under this section against a person where—
(a) it has sought to recover an amount from the person by means of taking enforcement action by virtue of section 35 or 38, or by means of a third party debt order or a charging order by virtue of section 36;
(b) the whole or any part of the amount remains unpaid; and
(c) the Commission is of the opinion that there has been wilful refusal or culpable neglect on the part of the person.
(2) For the purposes of subsection (1)(a), the Commission is to be taken to have sought to recover an amount by means of a charging order if an interim charging order has been made, whether or not any further steps have been taken to recover the amount.
(3) A person against whom an order under this section is made is disqualified for holding or obtaining a travel authorisation while the order has effect.
(4) On an application under subsection (1) for an order against a person the court shall (in the presence of that person) inquire as to—
(a) whether the person needs a travel authorisation to earn a living;
(b) the person’s means;
(c) whether there has been wilful refusal or culpable neglect on the part of the person.
(5) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the person, it may make an order under this section.
(6) The court may not take action under both this section and section 40.
(7) On an application under subsection (1) the court shall not question—
(a) the liability order by reference to which the Commission acted as mentioned in paragraph (a) of that subsection; or
(b) the maintenance calculation by reference to which that liability order was made.
(8) An order under this section shall specify the amount in respect of which it is made, which shall be the aggregate of—
(a) the amount sought to be recovered as mentioned in subsection (1)(a), or so much of it as remains unpaid; and
(b) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of the application under this section.
(9) A court which makes an order under this section shall require the person to whom it relates to produce any travel authorisation that the person holds.
(10) The court shall send to the prescribed person any travel authorisation produced to the court under subsection (9).
(11) Where a court—
(a) makes an order under this section, or
(b) allows an appeal against such an order,
it shall send notice of that fact to the Commission; and the notice shall contain such particulars and be sent in such manner and to such address as the Commission may determine.
(12) In this section “travel authorisation” means—
(a) a United Kingdom passport (within the meaning of the Immigration Act 1971);
(b) 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.
(13) In this section (except for the purposes of subsection (11)(b)) and in sections 39C to 39E, “court” means—
(a) in relation to England and Wales, a magistrates' court;
(b) in relation to Scotland, the sheriff.
(1) Disqualification by an order under section 39B shall be for such period not exceeding two years as the court may specify in the order.
(2) On making an order under section 39B, the court may include in the order provision suspending the running of the period for which the order is to have effect until such day and on such conditions (if any) as the court thinks just.
(3) After making such an order the court may by order suspend the running of the period for which it has effect until such day and on such conditions (if any) as the court thinks just.
(4) The powers conferred by subsections (2) and (3) may be exercised by the court only—
(a) if the person against whom the order under section 39B is made agrees to pay the amount specified in the order; or
(b) if the court is satisfied that the suspension in question is justified by exceptional circumstances.
(5) The Commission may make a further application under section 39B if the amount specified in an order under that section has not been paid in full by the end of the period for which the order has effect.
(1) On making an order under section 39B the court may order the person against whom the order is made to be searched.
(2) Any money found on such a search shall, unless the court otherwise directs, be applied towards payment of the amount specified under section 39B(8); and the balance (if any) shall be returned to the person searched.
(3) The court shall not allow the application under subsection (2) of money found on a search under subsection (1) if it is satisfied that the money does not belong to the person searched.
(1) If part of the amount specified in an order under section 39B is paid to any person authorised to receive it, the court may, on an application made by the Commission or the person against whom the order is made, by order—
(a) reduce the period for which the order under section 39B is to have effect; or
(b) revoke the order under section 39B.
(2) If the whole of the amount specified in an order under section 39B is paid to any person authorised to receive it, the court shall, on an application made by the Commission or the person against whom the order is made, by order revoke the order under section 39B.
(3) The Commission may make representations to the court as to the amount which should be paid before it would be appropriate to make an order under subsection (1) revoking an order under section 39B, and the person against whom the order was made may reply to those representations.
(4) The court may exercise the powers conferred on it by subsection (1) or (2) without the need for an application where money found on a search under section 39D(1) is applied towards payment of the amount specified in the order under section 39B.
(5) Where a court makes an order under this section, it shall send notice of that fact to the Commission; and the notice shall contain such particulars and be sent in such manner and to such address as the Commission may determine.
The Secretary of State may by regulations—
(a) make provision in relation to orders under section 39B corresponding to the provision that may be made under section 40(11);
(b) make provision for sections 39C to 39E to have effect with prescribed modifications in cases where a person against whom an order under section 39B has effect is outside the United Kingdom.
(1) In their application to Scotland, sections 39B and 39F have effect with the following modifications.
(2) In section 39B(6) for “section 40” substitute “section 40A”.
(3) For section 39F substitute—
In relation to orders under section 39B—
(a) the Secretary of State may by regulations make provision—
(i) for sections 39C to 39E to have effect with prescribed modifications in cases where a person against whom such an order has effect is outside the United Kingdom;
(ii) that a statement in writing to the effect that wages of any amount have been paid to a person during any period, purporting to be signed by or on behalf of the person’s employer, shall be sufficient evidence of the facts stated; and
(b) the power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make provision corresponding to that which may be made by virtue of section 40A(8).””
After section 39G of the Child Support Act 1991 (c. 48) (inserted by section 27 of this Act) insert—
(1) The Commission may apply to the court for an order requiring a person to remain, for periods specified in the order, at a place so specified (a “curfew order”) where—
(a) it has sought to recover an amount from the person by means of taking enforcement action by virtue of section 35 or 38, or by means of a third party debt order or a charging order by virtue of section 36;
(b) the whole or any part of the amount remains unpaid; and
(c) the Commission is of the opinion that there has been wilful refusal or culpable neglect on the part of the person.
(2) For the purposes of subsection (1)(a), the Commission is to be taken to have sought to recover an amount by means of a charging order if an interim charging order has been made, whether or not any further steps have been taken to recover the amount.
(3) On an application for a curfew order the court shall (in the presence of the person from whom the Commission has sought to recover the amount) inquire as to—
(a) the person’s means; and
(b) whether there has been wilful refusal or culpable neglect on the part of the person.
(4) On an application for a curfew order the court shall not question—
(a) the liability order by reference to which the Commission acted as mentioned in subsection (1)(a); or
(b) the maintenance calculation by reference to which that liability order was made.
(5) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the person from whom the Commission has sought to recover the amount, it may make a curfew order against the person.
(6) The court may not make a curfew order against a person who is under the age of 18.
(7) In this section and sections 39I to 39O “the court” means—
(a) in England and Wales, a magistrates' court;
(b) in Scotland, the sheriff.
(1) The periods and places specified as mentioned in section 39H(1) may include different periods and different places for different days, but shall not include periods which amount to less than 2 hours or more than 12 hours in any one day.
(2) A curfew order shall specify the period for which the requirements imposed by the order shall have effect.
(3) The period so specified—
(a) shall not exceed 6 months; and
(b) shall begin to run with the day on which the order is made unless the order provides (subject to such conditions, if any, as may be specified in the order) for it to begin to run with a later day.
(4) The court shall (so far as practicable) ensure that any requirement imposed by a curfew order is such as to avoid—
(a) any conflict with the religious beliefs of the person against whom the order is made; and
(b) any interference with the times (if any) at which that person normally works or attends any educational establishment.
(5) On making a curfew order—
(a) a magistrates' court may not specify in the order any place outside England and Wales; and
(b) the sheriff may not specify in the order any place outside Scotland.
(1) On making a curfew order the court shall also make an order requiring the person against whom the curfew order is made to pay an amount (determined in accordance with regulations made by the Secretary of State) specified in the order in respect of—
(a) the costs of the application for the curfew order; and
(b) the costs of monitoring compliance with the requirements imposed by the curfew order.
(2) The provisions of this Act with respect to—
(a) the collection of child support maintenance; and
(b) the enforcement of an obligation to pay child support maintenance,
apply equally (with any necessary modifications) to amounts which a person is required to pay by an order under this section.
(1) A curfew order shall specify the amount in respect of which it is made, which shall be the aggregate of—
(a) the amount sought to be recovered as mentioned in section 39H(1)(a), or so much of it as remains unpaid; and
(b) the amount which the person against whom the curfew order is made is required to pay by the order under section 39J.
(2) If part of the amount in respect of which a curfew order was made is paid to any person authorised to receive it, the court may, on an application by the Commission or the person against whom the curfew order was made, by order—
(a) reduce the period for which the requirements imposed by the curfew order have effect;
(b) provide for that period to begin to run with a day later than that with which it would otherwise have begun to run;
(c) suspend the running of that period, or provide for any existing such suspension to be extended, until a day specified in the order; or
(d) revoke the curfew order.
(3) An order under subsection (2)(b) or (c) may include provision for its effect to be subject to specified conditions.
(4) On the hearing of an application made under subsection (2) the Commission may make representations to the court as to which of the powers conferred by that subsection it would be appropriate for the court to exercise, and the person against whom the curfew order was made may reply to those representations.
(5) If the whole of the amount in respect of which a curfew order was made is paid to any person authorised to receive it, the court shall, on an application by the Commission or the person against whom the order was made, by order revoke the curfew order.
(6) The Commission may make a further application under section 39H if the amount in respect of which a curfew order was made has not been paid in full when the requirements imposed by the order cease to have effect.
(1) On making a curfew order, the court may order the person against whom the order is made to be searched.
(2) Any money found on such a search shall, unless the court otherwise directs, be applied towards payment of the amount in respect of which the curfew order is made; and the balance (if any) shall be returned to the person searched.
(3) The court shall not allow the application under subsection (2) of money found on a search under this section if it is satisfied that the money does not belong to the person searched.
(4) The court may exercise the powers conferred on it by section 39K(2) and (5) without the need for an application where money found on a search under this section is applied towards payment of the amount in respect of which a curfew order is made.
Child Maintenance and Other Payments Act 2008