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Child Maintenance and Other Payments Bill


Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

29

 

(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

5

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

10

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;

15

(e)   

as to the execution of a warrant of arrest.”

27      

Commitment to prison

(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

20

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;

25

(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

30

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—

35

(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

40

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

45

person to be searched.

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

30

 

(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 liable person.

(10B)   

The reference in subsection (10A) to the relevant amount is—

(a)   

where the order under subsection (10) is made by virtue of the

5

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).

10

(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—

15

“(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

20

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”).

25

(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

30

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

35

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.”.

40

(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

45

balance (if any) shall be returned to the liable person.

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

31

 

(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

5

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.”

10

28      

Disqualification for driving

(1)   

In section 40B of the Child Support Act 1991 (c. 48) (disqualification from

driving), for the heading and subsection (1) substitute—

“40B    

Disqualification for holding or obtaining driving licence

(A1)   

The Commission may apply to the court for an order disqualifying a

15

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;

20

(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

25

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

30

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;

35

(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

40

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—

45

(a)   

make a disqualification order against the liable person; or

 
 

Child Maintenance and Other Payments Bill
Part 3 — Child Support etc.

32

 

(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.

5

(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 liable person.

(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

10

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.”

Debt management powers

15

29      

Power to treat liability as satisfied

After section 41B of the Child Support Act 1991 (c. 48) insert—

“41C    

Power to treat liability as satisfied

(1)   

The Secretary of State may by regulations—

(a)   

make provision enabling the Commission in prescribed

20

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

25

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

30

this section applies are to child support maintenance for the collection

of which the Commission is authorised to make arrangements.”

30      

Power to accept part payment of arrears in full and final satisfaction

After section 41C of the Child Support Act 1991 (inserted by section 29 of this

Act) insert—

35

“41D    

Power to accept part payment of arrears in full and final satisfaction

(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 may by regulations make provision with respect

40

to the exercise of the power under subsection (1).”

 
 

 
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Revised 17 October 2007