Office of Public Sector Information
PART 3 continued
(1) A curfew order shall—
(a) provide for a person’s compliance with the requirements imposed by the order to be monitored; and
(b) make a person specified in the order responsible for that monitoring.
(2) The court may not make a curfew order unless—
(a) it has been notified by the Commission that arrangements for monitoring compliance with the requirements imposed by such orders are available in the area in which the place proposed to be specified in the order is situated and the notice has not been withdrawn;
(b) it is satisfied that the necessary provision can be made under those arrangements; and
(c) it has the consent of any person (other than the person against whom the order is to be made) whose co-operation is necessary to secure the monitoring of compliance with the requirements imposed by the order.
(3) If a curfew order cannot be made because of the absence of any consent required by subsection (2)(c), the court may treat the application for the order as an application under section 40 (or, in the case of an application made to the sheriff, as an application under section 40A).
(4) The Secretary of State may by regulations make provision as to—
(a) the cases or circumstances in which the person responsible for monitoring a person’s compliance with the requirements imposed by a curfew order may allow that person to be absent from the place specified in the curfew order during a period so specified; and
(b) the requirements which may be imposed in connection with such an absence.
(1) The person responsible for monitoring a person’s compliance with the requirements imposed by a curfew order, or the Commission, may apply to the court where it appears that the person subject to the requirements in question has failed to comply with—
(a) any of those requirements; or
(b) any requirements imposed by virtue of section 39M(4).
(2) On any such application the court shall (in the presence of the person subject to the requirements in question) inquire as to whether the person has failed without reasonable excuse to comply with any of those requirements.
(3) If the court is of the opinion that the person has failed without reasonable excuse to comply with any of those requirements, it may—
(a) issue a warrant of commitment against that person; or
(b) by order provide for the requirements imposed by the curfew order to have effect for a specified further period.
(4) A warrant issued under subsection (3)(a) shall order the person against whom it is issued—
(a) to be imprisoned for a period specified in the warrant; but
(b) to be released (unless in custody for some other reason) on payment of the amount in respect of which the curfew order in question was made.
(5) A warrant issued under subsection (3)(a) may be directed to such person or persons as the court issuing it thinks fit.
(6) The power conferred by subsection (3)(b) may not be exercised so as to provide for the requirements imposed by the curfew order to have effect for a period exceeding 6 months after the making of the order under that subsection.
(7) Where, following the issue of a warrant under subsection (3)(a), part of the amount specified in the curfew order is paid to any person authorised to receive it, the court may, on an application by the Commission or the person against whom the warrant was issued—
(a) reduce the period specified in the warrant; or
(b) order the release of the person against whom the warrant was issued.
(8) On the hearing of an application made under subsection (7) 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 warrant was issued may reply to those representations.
(1) The court may not make a curfew order against a person at any time when the person is in custody for any reason.
(2) The running of the period during which the requirements imposed by a curfew order have effect shall be suspended for the whole of any day during any part of which the person against whom the order is made is in custody for any reason.
(3) If the period during which the requirements imposed by a curfew order have effect would have begun to run but for its being suspended by virtue of this section, that period shall instead begin to run with the first day when its running is no longer suspended.
(1) The Secretary of State may by regulations make provision for England and Wales with respect to curfew orders.
(2) The regulations may, in particular, make provision—
(a) as to the form and content of a curfew order;
(b) allowing an application for a curfew order to be renewed where no curfew order is made;
(c) that a statement in writing to the effect that wages of any amount have been paid during any period to a person, purporting to be signed by or on behalf of that person’s employer, shall be evidence of the facts stated;
(d) that a justice of the peace may issue a summons to a person to appear before a magistrates' court and (if that person does not appear) may issue a warrant for that person’s arrest;
(e) that, for the purpose of securing a person’s presence before a magistrates' court, a justice of the peace may issue a warrant for that person’s arrest without issuing a summons;
(f) as to the execution of a warrant for arrest;
(g) for the amendment or revocation of requirements imposed by a curfew order, on an application made to a magistrates' court by the Commission or the person against whom the order was made;
(h) similar to that made by sections 39J, 39L and 39M(2) and (3), in relation to any amendment of a curfew order;
(i) as to the exercise by a magistrates' court of the powers conferred by sections 39K(2) and (3) and 39N(7).
(3) Regulations under subsection (2)(g) may confer power on a magistrates' court to substitute for the place or places specified in the order a place or places in Scotland.
(4) Where a magistrates' court exercises such a power, the functions of the magistrates' court in relation to the order as so amended shall be exercisable instead by the sheriff.
(1) The Secretary of State may by regulations make provision for Scotland with respect to curfew orders.
(2) The regulations may, in particular, make provision—
(a) as to the content of a curfew order;
(b) that a statement in writing to the effect that wages of any amount have been paid during any period to a person, purporting to be signed by or on behalf of that person’s employer, shall be sufficient evidence of the facts stated;
(c) for the amendment or revocation of requirements imposed by a curfew order, on an application made to the sheriff by the Commission or the person against whom the order was made;
(d) similar to that made by sections 39J, 39L and 39M(2) and (3), in relation to any amendment of a curfew order;
(e) as to the exercise by the sheriff of the powers conferred by sections 39K(2) and (3) and 39N(7).
(3) Regulations under subsection (2)(c) may confer power on the sheriff to substitute for the place or places specified in the order a place or places in England and Wales.
(4) Where the sheriff exercises such a power, the functions of the sheriff in relation to the order as so amended shall be exercisable instead by a magistrates' court.
(5) 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—
(a) as to the form of a curfew order;
(b) allowing an application for a curfew order to be renewed where no curfew order is made;
(c) that the sheriff may issue a citation to a person to appear before the sheriff and (if the person does not appear) may issue a warrant for the person’s arrest;
(d) that, for the purpose of securing a person’s presence before the sheriff, the sheriff may issue a warrant for the person’s arrest without issuing a citation;
(e) as to the execution of a warrant of arrest.”
(1) In section 40 of the Child Support Act 1991 (c. 48) (commitment to prison), before subsection (3) insert—
“(2A) The Commission may apply to a magistrates' court for the issue of a warrant committing a person to prison 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 from whom it has sought to recover the amount (“the liable person”).
(2B) For the purposes of subsection (2A)(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.
(2C) On an application under subsection (2A) the court shall (in the presence of the liable person) inquire as to—
(a) the liable person’s means; and
(b) whether there has been wilful refusal or culpable neglect on the part of the liable person.
(2D) On an application under subsection (2A) 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.”
(2) For subsection (10) of that section, substitute—
“(10) On acting as mentioned in subsection (3), the court may order the liable person to be searched.
(10A) Any money found on such a search shall, unless the court otherwise directs, be applied towards payment of the relevant amount; and the balance (if any) shall be returned to the person searched.
(10B) The reference in subsection (10A) to the relevant amount is—
(a) where the order under subsection (10) is made by virtue of the court acting under subsection (3)(a), to the amount mentioned in subsection (4)(a);
(b) where the order under subsection (10) is made by virtue of the court acting under subsection (3)(b), to the amount mentioned in subsection (4)(a)(i).
(10C) The court shall not allow the application under subsection (10A) of money found on a search under subsection (10) if it is satisfied that the money does not belong to the person searched.”
(3) In section 40A of that Act (commitment to prison: Scotland), before subsection (1) insert—
“(A1) The Commission may apply to the sheriff for the issue of a warrant committing a person to prison 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 from whom it has sought to recover the amount (“the liable person”).
(A2) For the purposes of subsection (A1)(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.
(A3) On an application under subsection (A1), the sheriff shall (in the presence of the liable person) inquire into—
(a) the liable person’s means; and
(b) whether there has been wilful refusal or culpable neglect on the part of the liable person.
(A4) On an application under subsection (A1), the sheriff 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.”
(4) After subsection (7) of that section, insert—
“(7A) On acting as mentioned in subsection (1), the sheriff may order the liable person to be searched.
(7B) Any money found on such a search shall, unless the sheriff otherwise directs, be applied towards payment of the relevant amount; and the balance (if any) shall be returned to the person searched.
(7C) The reference in subsection (7B) to the relevant amount is—
(a) where the order under subsection (7A) is made by virtue of the court acting under subsection (1)(a), to the amount mentioned in subsection (2)(a);
(b) where the order under subsection (7A) is made by virtue of the court acting under subsection (1)(b), to the amount mentioned in subsection (2)(a)(i).
(7D) The sheriff shall not allow the application under subsection (7B) of money found on a search under subsection (7A) if the sheriff is satisfied that the money does not belong to the person searched.”
(1) In section 40B of the Child Support Act 1991 (c. 48) (disqualification from driving), for the heading and subsection (1) substitute—
(A1) The Commission may apply to the court for an order disqualifying a person for holding or obtaining a driving licence 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 from whom it has sought to recover the amount (“the liable person”).
(A2) Disqualification by an order under subsection (A1) (a “disqualification order”) shall be for such period not exceeding two years as the court may specify in the order.
(A3) For the purposes of subsection (A1)(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.
(A4) On an application under subsection (A1) the court shall (in the presence of the liable person) inquire as to—
(a) whether the liable person needs a driving licence to earn a living;
(b) the liable person’s means; and
(c) whether there has been wilful refusal or culpable neglect on the part of the liable person.
(A5) On an application under subsection (A1) 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.
(1) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person, it may—
(a) make a disqualification order against the liable person; or
(b) make such an order but suspend its operation until such time and on such conditions (if any) as it thinks just.”
(2) For subsection (10) of that section, substitute—
“(10) On making a disqualification order, the court may order the liable person to be searched.
(10A) Any money found on such a search shall, unless the court otherwise directs, be applied towards payment of the amount due; and the balance (if any) shall be returned to the person searched.
(10B) The court shall not allow the application under subsection (10A) of money found on a search under subsection (10) if it is satisfied that the money does not belong to the person searched.
(10C) The court may exercise the powers conferred on it by subsection (5) without the need for an application where money found on a search under subsection (10) is applied towards payment of the amount due.”
After section 41B of the Child Support Act 1991 (c. 48) insert—
(1) The Secretary of State may by regulations—
(a) make provision enabling the Commission in prescribed circumstances to set off liabilities to pay child support maintenance to which this section applies;
(b) make provision enabling the Commission in prescribed circumstances to set off against a person’s liability to pay child support maintenance to which this section applies a payment made by the person which is of a prescribed description.
(2) Liability to pay child support maintenance shall be treated as satisfied to the extent that it is the subject of setting off under regulations under subsection (1).
(3) In subsection (1), the references to child support maintenance to which this section applies are to child support maintenance for the collection of which the Commission is authorised to make arrangements.”
After section 41C of the Child Support Act 1991 (inserted by section 31 of this Act) insert—
(1) The Commission may, in relation to any arrears of child support maintenance, accept payment of part in satisfaction of liability for the whole.
(2) The Secretary of State must by regulations make provision with respect to the exercise of the power under subsection (1).
(3) The regulations must provide that unless one of the conditions in subsection (4) is satisfied the Commission may not exercise the power under subsection (1) without the appropriate consent.
(4) The conditions are—
(a) that the Commission would be entitled to retain the whole of the arrears under section 41(2) if it recovered them;
(b) that the Commission would be entitled to retain part of the arrears under section 41(2) if it recovered them, and the part of the arrears that the Commission would not be entitled to retain is equal to or less than the payment accepted under subsection (1).
(5) Unless the maintenance calculation was made under section 7, the appropriate consent is the written consent of the person with care with respect to whom the maintenance calculation was made.
(6) If the maintenance calculation was made under section 7, the appropriate consent is—
(a) the written consent of the child who made the application under section 7(1), and
(b) if subsection (7) applies, the written consent of the person with care of that child.
(7) This subsection applies if—
(a) the maintenance calculation was made under section 7(2), or
(b) the Secretary of State has made arrangements under section 7(3) on the application of the person with care.”
After section 41D of the Child Support Act 1991 (c. 48) (inserted by section 32 of this Act) insert—
(1) The Commission may extinguish liability in respect of arrears of child support maintenance if it appears to it—
(a) that the circumstances of the case are of a description specified in regulations made by the Secretary of State, and
(b) that it would be unfair or otherwise inappropriate to enforce liability in respect of the arrears.
(2) The Secretary of State may by regulations make provision with respect to the exercise of the power under subsection (1).”
After section 49 of the Child Support Act 1991 insert—
(1) The Secretary of State may by regulations make provision enabling the Commission in prescribed circumstances to enter into arrangements (“transfer arrangements”) under which liability in respect of arrears of child support maintenance becomes debt due to the person with whom the arrangements are entered into (“the transferee”).
(2) Liability which is the subject of transfer arrangements—
(a) ceases to be liability in relation to which the Commission’s functions with respect to collection and enforcement are exercisable, and
(b) becomes debt in which only the transferee has an interest.
(3) Regulations under subsection (1) must provide that unless one of the conditions in subsection (4) is satisfied the Commission may not enter into transfer arrangements in relation to arrears of child support maintenance without the appropriate consent.
(4) The conditions are—
(a) that the Commission would be entitled to retain the whole of the arrears under section 41(2) if it recovered them;
(b) that the Commission would be entitled to retain part of the arrears under section 41(2) if it recovered them, and the part of the arrears that the Commission would not be entitled to retain is equal to or less than the transfer payment.
(5) In subsection (4)(b), “transfer payment” means—
(a) the payment that the Commission would receive from the transferee on the arrangements taking effect, and
(b) such other payments under the transfer arrangements as may be prescribed.
(6) Unless the maintenance calculation was made under section 7, the appropriate consent is the written consent of the person with care with respect to whom the maintenance calculation was made.
(7) If the maintenance calculation was made under section 7, the appropriate consent is—
(a) the written consent of the child who made the application under section 7(1), and
(b) if subsection (8) applies, the written consent of the person with care of that child.
(8) This subsection applies if—
(a) the maintenance calculation was made under section 7(2), or
(b) the Secretary of State has made arrangements under section 7(3) on the application of the person with care.
(9) Regulations under subsection (1) may, in particular—
(a) specify when arrears of child support maintenance may be the subject of transfer arrangements;
(b) specify the descriptions of person with whom transfer arrangements may be entered into;
(c) specify terms and conditions which transfer arrangements must include;
(d) provide that a payment made to the Commission under transfer arrangements may be treated for prescribed purposes as if it were a payment of child support maintenance.
(10) Regulations under subsection (1) may include—
(a) provision with respect to the recovery of debt to which a person is entitled by virtue of transfer arrangements;
(b) provision enabling the Commission in prescribed circumstances to prevent a person entitled to debt by virtue of transfer arrangements from taking steps to recover it;
(c) provision enabling the Commission to supply information of a prescribed description to a person entitled to debt by virtue of transfer arrangements for the purpose of enabling the debt to be recovered.”
(1) In section 4(10) of the Child Support Act 1991 (c. 48) (exclusion of application for maintenance calculation), after paragraph (aa) insert—
“(ab) a maintenance agreement—
(i) made on or after the date prescribed for the purposes of paragraph (a); and
(ii) registered for execution in the Books of Council and Session or the sheriff court books,
is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or”.
(2) In section 7(10) of that Act (exclusion of application by child in Scotland for maintenance calculation), at the end of paragraph (b) insert “; or
(c) a maintenance agreement—
(i) made on or after the date prescribed for the purposes of paragraph (a); and
(ii) registered for execution in the Books of Council and Session or the sheriff court books,
is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made.”
(3) In section 9(3) of that Act (agreements about maintenance), after “4(10)(a)” insert “and (ab)”.
(1) In section 14A of the Child Support Act 1991 (information_offences), after subsection (3) insert—
“(3A) In the case of regulations under section 14 which require a person liable to make payments of child support maintenance to notify a change of address, a person who fails to comply with the requirement is guilty of an offence.”
(2) In that section, in subsection (4), after “subsection (3)” insert “or (3A)”.
In section 42(2) of the Child Support Act 1991 (examples of cases in relation to which the power under subsection (1) to prescribe circumstances in which a case is to be treated as a special case for the purposes of the Act may be exercised), at the end insert—
“(g) the same persons are the parents of two or more children and each parent is—
(i) a non-resident parent in relation to one or more of the children, and
(ii) a person with care in relation to one or more of the children.”
After section 43 of the Child Support Act 1991 (c. 48) insert—
(1) The Secretary of State may by regulations make provision for the recovery from the estate of a deceased person of arrears of child support maintenance for which the deceased person was liable immediately before death.
(2) Regulations under subsection (1) may, in particular—
(a) make provision for arrears of child support maintenance for which a deceased person was so liable to be a debt payable by the deceased’s executor or administrator out of the deceased’s estate to the Commission;
(b) make provision for establishing the amount of any such arrears;
(c) make provision about procedure in relation to claims under the regulations.
(3) Regulations under subsection (1) may include provision for proceedings (whether by appeal or otherwise) to be instituted, continued or withdrawn by the deceased’s executor or administrator.”
Child Maintenance and Other Payments Act 2008