Clause 24: Enforcement in county courts

206.     This clause amends section 36 of the Child Support Act 1991, removing the requirement to obtain an order from the county court before an application for a charging order or a third party debt order can be made. In the future, an application can be made on the basis of the administrative liability order.

Clause 25: Disqualification for holding or obtaining a travel authorisation

207.     This clause inserts eight new sections, 39B, 39C, 39D, 39E, 39F, 39G, 39H and 39I into the Child Support Act 1991 and provides the Commission with a power to disqualify a non-resident parent for holding or obtaining a travel authorisation.

208.     New section 39B enables the Commission to disqualify a non-resident parent, against whom a liability order has been made, for holding or obtaining a travel authorisation if:

• it has sought to recover the arrears through the use of bailiffs (in England and Wales), or diligence action (in Scotland) or by means of a third party debt order or charging order;

• the whole or any part of the arrears remains unpaid; and

• it is of the opinion that that the non-resident parent has wilfully refused or culpably neglected to pay maintenance.

209.     Subsection (2) of section 39B provides that the Commission is to be taken as having sought to recover arrears through a charging order if an interim charging order is in place, whether or not further action has been taken to recover the amount.

210.     Subsection (3) determines that the non-resident parent against whom an order is made, will be subject to disqualification for holding or obtaining a travel authorisation for the period the order has effect.

211.     Subsection (4) of section 39B requires the Commission to consider whether a non-resident parent requires a travel authorisation to earn a living before making an order.

212.     Subsection (5) sets out that the amount specified in the order will be an aggregate of the amount stated in the liability order as remains outstanding, and an amount to be recovered by the Commission in respect of the costs of making the order.

213.     Subsection (6) requires the Commission to serve a copy of the order, together with a copy of the order for costs, on the non-resident parent against whom the order is made.

214.     Subsection (7) sets out definitions for the purposes of this section. In particular, travel authorisation means:

• a UK passport (within the meaning of the Immigration Act 1971);

• 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.

215.     Section 39C concerns the duration of an order made under this section.

216.     Subsection (1) of section 39C sets out that the order will specify for how long it will have effect. This period can not exceed twelve months (subject to any extension following an unsuccessful appeal or the non-resident parent's failure to surrender a travel authorisation).

217.     Subsection (2) provides that the order will come into effect on the first day following the 28 day period allowed for the non-resident parent to make an appeal. If the order is suspended, the order will come into effect once the suspension is lifted.

218.     Subsections (3), (4) and (5) enable the Commission to suspend an order in exceptional circumstances on such conditions as it sees fit. For example, the Commission may suspend an order where the non-resident parent has been committed to prison. The Commission may also suspend an order where the non-resident parent agrees to pay the amount specified in the order.

219.     Subsection (6) provides that the Commission may make another order disqualifying a person for holding or obtaining a travel authorisation if, when the effective period of the original order has ended, an amount specified in that order remains outstanding.

220.     Subsection 39D(1) requires a non-resident parent who is subject to a disqualification order under section 39B to surrender their travel authorisation, to a prescribed person in the prescribed manner, within seven days of the beginning of the period that the order has effect, or has effect again following a suspension.

221.     Subsection (2) provides that, if immediately before the end of the seven day period, the non-resident parent who is subject to a disqualification order has presented good reason for not surrendering their travel authorisation, they will be allowed to surrender their documents as soon as is practicably possible after the end of the seven day period.

222.     Subsection (3) provides that the Secretary of State may by regulations make provision prescribing the circumstances in which the non-resident parent is considered to have or not to have a good reason for not surrendering their travel authorisation.

223.     Subsection (4) states that the requirements imposed by subsections (1) and (2) do not apply if the period for which the order has effect is suspended or ends.

224.     Subsections (5) and (6) set out that a non-resident parent who refuses to surrender their documents to the prescribed person will be committing an offence, and liable on summary conviction to a fine (currently not exceeding level three on the standard scale (£1000)).

225.     Subsections (7) and (8) set out that where a non-resident parent is sentenced for non-surrender of documentation under subsection (5), the court may extend the effective period of the original disqualification order. The effective period of the order, including any extension, may not exceed two years.

226.     For the avoidance of doubt, subsection (9) sets out that 'travel authorisation' has the same meaning as in section 39B.

227.     Section 39E provides a right of appeal to the magistrates' court (or, in Scotland, the sheriff) for a non-resident parent against whom an order is made to disqualify them for holding or obtaining a travel authorisation.

228.     Subsection (1) of section 39E allows the non-resident parent 28 days from the first date they have actual notice of the order, to file an appeal to a magistrates' court (or, in Scotland, the sheriff).

229.     Subsection (2) suspends the implementation of the order until the appeal has been determined, withdrawn or discontinued.

230.     Subsections (3) and (4) allow the court to grant leave to appeal after the 28 day period has expired if prescribed conditions are satisfied. If leave is granted, the court may suspend the order on such conditions as it thinks just.

231.     Subsection (5) states that when an appeal is made to the court, the court will reconsider the original order, and may either affirm, vary or revoke the order.

232.     Subsection (6) prevents a court, when hearing such an appeal, from questioning the liability order upon which an order for disqualification is made, or the maintenance calculation which is the basis of the liability order.

233.     Subsection (7) prevents the court, when varying an order, from extending the order so that it has effect for more than two years in total.

234.     Under subsection (8) if on appeal, the court affirms or varies an order, the court can replace the amount specified in the order with an amount equal to the total of:

• the amount of arrears outstanding on the date the order is affirmed or varied;

• the amount of costs specified in relation to the making of the order which are outstanding;

• the amount of costs specified in relation to the appeal; and

• if a further liability order has been made since the disqualification order was made, any amount specified in that order which remains unpaid.

235.     Subsection (9) lifts the suspension of the order as soon as a court affirms or varies an order, unless the court considers that the suspension is justified for exceptional circumstances, or the non-resident parent has agreed to pay the amount specified in the order.

236.     Subsection (10) determines that, should the court revoke an order, it will also revoke the order for costs, unless, having regard to all the circumstances, it considers it reasonable to require the non-resident parent to pay the costs.

237.     Subsection (11) defines 'the court' for the purposes of this section as:

• A magistrates' court in relation to England and Wales.

• The sheriff in relation to Scotland.

238.     Section 39F provides a power for the court to search a non-resident parent against whom an order to disqualify for holding or obtaining a travel authorisation has been made.

239.     Subsection (2) of section 39F sets out that during a search, any money found on a non-resident parent shall (unless the court otherwise directs) be taken by the court and put towards the amount due on the affirmation or revision of the order, and the balance, if any, returned to the non-resident parent.

240.     Subsection (3) prevents the court from taking any money found on the non-resident parent if it was satisfied that it did not belong to the non-resident parent.

241.     Section 39G allows the Commission to make an order to require the non-resident parent against whom an order under section 39B has been made, to pay costs incurred by the Commission in making the order to disqualify them for holding or obtaining a travel authorisation.

242.     Subsection (2) of section 39G provides that where an appeal has been brought which is affirmed or varied by the court, the court may make an order requiring the non-resident parent against whom an order under section 39B has been made, to pay costs incurred by the Commission in connection with the appeal.

243.     Subsection (3) enables the court to make an order in respect of costs under subsection (2) where on appeal, the order is revoked, if the court is satisfied that, having regard to all the circumstances, it would be reasonable to do so.

244.     Subsection (4) determines that powers available to the Commission to collect and enforce child support maintenance also apply to the collection and enforcement of the costs incurred in making an order under this section.

245.     Where the non-resident parent makes part payment of the amount stated in the order, section 39H enables the Commission either to revoke, or reduce the period of, that order.

246.     Subsection (2) allows the court either to revoke or reduce the period of the order, instead of the Commission, where an appeal against the disqualification order has not been determined, withdrawn or discontinued.

247.     Subsection (3) states that the Commission must, on application by the non-resident parent, revoke the order where the amount specified in the order is paid in full to the person authorised to receive it.

248.     Section 39I provides regulation-making powers to the Secretary of State with regard to the practicalities and procedure relating to orders to disqualify a non-resident parent for holding or obtaining a travel authorisation, including relating to appeals and costs.

249.     Subsection (2) of section 39I sets out that those provisions may include:

• the form and content of an order for disqualification;

• the surrender of documents relating to the order and their return once the period of disqualification specified in the order is suspended or has ended;

• the ability to use an employer's written confirmation that wages have been paid to a non-resident parent as evidence;

• the ability for a court to dismiss an appeal brought by a non-resident parent against the order made, if they fail to appear at the hearing of that appeal;

• a requirement of the court to send notice to the Commission of any order made on appeal;

• the manner in which the Commission may revoke or revise an order following part payment of the amount due;

• the circumstances regarding the revival of an order; and

• for sections 39C to 39H to have effect with prescribed modifications, in cases where a person who is subject to an order disqualifying them for holding or obtaining a travel authorisation is outside the United Kingdom.

Clause 26: Curfew orders

250.     Clause 26 inserts ten new sections, 39J, 39K, 39L, 39M, 39N, 39O, 39P, 39Q, 39R and 39S into the Child Support Act 1991 and provides the Commission with a power to apply to a magistrates' court (or, in Scotland, the sheriff) for a curfew order to be made against a non-resident parent who fails to pay maintenance.

251.     The new section 39J enables the Commission to apply to the court for a curfew order against a non-resident parent if:

• it has sought to recover the arrears through the use of bailiffs (in England and Wales), or diligence action (in Scotland) or by means of a third party debt order or charging order;

• the whole or any part of the arrears remains unpaid; and

• it is of the opinion that that the non-resident parent has wilfully refused or culpably neglected to pay maintenance.

252.     Subsection (2) of section 39J provides that the Commission is to be taken as having sought to recover arrears through a charging order if an interim charging order is in place, whether or not further action has been taken to recover the amount.

253.     Subsection (3) requires the court to inquire about (in the presence of the non-resident parent against whom the liability order has been made) that person's means, and whether they have wilfully refused or culpably neglected to pay the child support maintenance for which they are liable.

254.     Subsection (4) prevents a court, when considering an application for a curfew, from questioning the liability order on which an application for a curfew order has been made, or the original maintenance calculation which is the basis of the liability order.

255.      Subsection (5) prevents the court from making a curfew order, unless it is of the opinion that the non-resident parent has wilfully refused or culpably neglected to pay maintenance.

256.     Subsection (6) prevents the court from making an order against a person who is under the age of eighteen.

257.     Subsection (7) provides that for the purposes of this section and sections 39K and 39Q the 'court' means 'magistrates' court' in England and Wales, and 'the sheriff' in Scotland.

258.     Section 39K concerns the duration of a curfew order.

259.     Subsection (1) of section 39K stipulates that a curfew order must be limited to between two and twelve hours in any one day, but may include different periods and different places for different days.

260.     Subsections (2) and (3) require the period of the curfew to be specified in the order, that it not last for more than six months and that it begin on the day the order is made unless otherwise specified.

261.     Subsection (4) ensures that the curfew imposed does not conflict (so far as practicable) with the non-resident parent's religious beliefs or interfere with the times at which they normally work or attend any educational establishment.

262.     Subsection (5) prevents a magistrates' court from specifying a curfew location outside England and Wales, and a sheriff from specifying a curfew location outside Scotland.

263.     Section 39L provides that where a curfew order has been made, the court shall also make an order requiring the non-resident parent for whom the order has been made, to pay an amount in respect of the costs of the application and the monitoring of the curfew order.

264.     Subsection (2) of section 39L provides that the powers available for the Commission to collect and enforce child support maintenance also apply to the collection and enforcement of the costs incurred by making an order under this section.

265.     Section 39M sets out provisions about the relationship between the amount of maintenance outstanding and the curfew order imposed.

266.     Subsection (1) of section 39M stipulates that a curfew order will be made in respect of an amount of money which totals both the amount sought to be recovered which remains outstanding, and the costs ordered by the court under section 32L in relation to the application for a curfew order and monitoring compliance with that order.

267.     Where part of the amount in respect of which a curfew order has been made is paid to the person authorised to receive it, subsection (2) allows the court (on application by either the non-resident parent or the Commission) discretion to:

• reduce the period the curfew order is in place;

• allow the curfew to start on a day later than the day the order would otherwise begin to run;

• suspend the curfew or extend any existing suspension; or

• revoke the curfew order.

268.     Subsection (3) enables the start date for a curfew, or the ability to suspend it, to be subject to specified conditions.

269.     Where a non-resident parent has paid some of the arrears, subsection (4) allows the Commission to make representations to the courts as to which of the powers conferred by subsection (2) should be exercised. The non-resident parent may reply to such representations.

270.     Subsection (5) requires the court (on application by the non-resident parent or the Commission) to revoke a curfew order if the whole amount specified in the curfew order has been paid by the non-resident parent to the person authorised to receive it.

271.     Subsection (6) enables the Commission to make a further application to the court if by the end of the curfew period the amount specified in the order has not been paid in full.

272.     Section 39N provides a power for the court to order the search of a non-resident parent in respect of whom a curfew order has been made.

273.     Subsection (2) of section 39N sets out that during a search, any money found on a non-resident parent shall (unless the court otherwise directs) be taken by the court and put towards the amount specified in the curfew order (the balance, if any, would be returned to the non-resident parent).

274.     Subsection (3) prevents the court from taking any money if it is satisfied that it does not belong to the non-resident parent.

275.     Subsection (4) gives some flexibility to the court enabling it to exercise its powers to reduce, postpone, suspend or revoke the order (under section 39M) without the need for a separate application, where money is found and put towards the amount owed by the non-resident parent.

276.     Section 39O sets out the provisions relating to how a curfew will be monitored.

277.     Subsection (1) of Section 39O requires the non-resident parent's compliance with a curfew order to be monitored by a person or body specified in the order.

278.     Subsection (2) prevents the court from imposing a curfew order unless:

• it has been notified by the Commission that suitable monitoring arrangements are available in the place specified in the order;

• it is satisfied with those arrangements; and

• it has the consent of any third party whose co-operation is necessary for monitoring the curfew order, for example, a landlord who must give permission for a monitoring system to be installed in the home of a non-resident parent.

279.     Where a third party's consent can not be obtained, subsection (3) enables the court to treat the application for a curfew order as an application for committal to prison.

280.     Subsection (4) provides the Secretary of State with regulation-making powers to enable the responsible officer to allow the non-resident parent to be absent from the place specified in the curfew order during the curfew period in certain cases or circumstances, and also the power to set out the requirements which may be imposed in relation to such an absence.

281.     Section 39P concerns breaches of curfew orders.

282.     Subsection (1) of section 39P allows the person responsible for monitoring compliance with the curfew order, or the Commission, to apply to the court should the non-resident parent not meet the requirements of the curfew order, or subsequent requirements imposed by virtue of section 39O(4).

283.     Subsections (2) and (3) require the court to establish (in the presence of the non-resident parent) whether the curfew order has been breached without reasonable excuse, and if it is found to have been, the court can issue a warrant to commit the non-resident parent to prison or extend the period of the curfew order.

284.     Subsection (4) sets out that a warrant for committal to prison shall order that the non-resident parent be imprisoned for the period specified in the warrant but released (unless in custody for a different reason) should they pay the full amount due in respect of the curfew order made.

285.     Subsection (5) provides that a warrant may be directed to such person or persons as the court sees fit.

286.     Subsection (6) provides that where a curfew order is extended because it has been breached, that order can not be extended for more than six months from the date the extension of the order is made.

287.     Subsection (7) enables the court to release a non-resident parent from prison or reduce their sentence if they pay part of the amount specified in the curfew order, following an application from the Commission or the non-resident parent.

288.     Where part of the amount specified in the order is paid, subsection (8) enables the Commission to make representations to the court about whether the period specified in the warrant should be either reduced or whether the person imprisoned should be released. It also enables the non-resident parent to respond to those representations.

289.     Section 39Q prevents a court from making a curfew order against a non-resident parent who is in prison for any reason.

290.     Subsections (2) and (3) of section 39Q suspend a curfew order if the non-resident parent is committed to prison, and commence it once the suspension is lifted because the non-resident parent is released from prison.

291.     Section 39R provides the Secretary of State with regulation-making powers regarding the practical procedures relating to curfew orders in England and Wales.

292.     Subsection (2) of section 39R sets out that the regulations may in particular include provisions relating to the following:

• form and content of a curfew order;

• allowing an application for a curfew order to be renewed if no order is made;

• allowing an employer's written statement as evidence that wages have been paid to a non-resident parent;

• enabling a justice of the peace to issue a summons for a person to appear in court and, where they do not, to issue a warrant for their arrest, or to issue a warrant for arrest without issuing a summons first, to secure a person's presence before it;

• the execution of a warrant for arrest;

• enabling a curfew order to be amended or revoked on application to the courts by the Commission or the non-resident parent;

• in relation to any amendment, provision similar to that in section 39L - determining the amount of costs the court can recover from a non-resident parent, section 39N - ordering a search of a non-resident parent, 39O(2) and (3) - requirement for monitoring arrangements to be in place; and

• how a magistrates' court exercises its power following part payment under sections 39M(2) and (3) and section 39P(7).

293.     Subsections (3) and (4) provide for the making of regulations enabling a magistrates' court to amend a curfew order to specify a location in Scotland. In these circumstances any functions of the court in relation to the curfew order shall be exercisable by the sheriff.

294.     Section 39S provides the Secretary of State with regulation-making powers regarding the practical processes relating to curfew orders in Scotland.

295.     Subsection (2) of section 39S sets out that the regulations may in particular make provision relating to the following:

• content of a curfew order;

• allowing an employer's written statement as evidence that wages have been paid to a non-resident parent;

• enabling a curfew order to be amended or revoked on application to the sheriff by the Commission or the non-resident parent

• in relation to any amendment, provision similar to that in section 39L - determining the amount of costs the court can recover from a non-resident parent, section 39N - ordering a search of a non-resident parent, 39O(2) and (3) - requirement for monitoring arrangements to be in place; and

• how the sheriff exercises the powers conferred by sections 39M(2) and (3) and section 39P(7).

296.     Subsections (3) and (4) make provision for regulations enabling the sheriff to amend a curfew order to specify a location in England and Wales. In these circumstances any functions of the sheriff in relation to the curfew order shall be exercisable instead by the magistrates' court.

297.     Subsection (5) sets out that 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 for:

• form of a curfew order;

• allowing an application for a curfew order to be renewed if no order is made;

• enabling the sheriff to issue a citation for a person to appear before the sheriff, and if that person does not appear, to issue a warrant for their arrest;

• enabling the sheriff to issue a warrant for arrest without issuing a citation first, to secure a person's presence before it; and

• the execution of a warrant for arrest.