House of Lords - Explanatory Note
Child Support, Pensions And Social Security Bill - continued          House of Lords

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The following two clauses appear in the Bill in Part V: Miscellaneous and Supplemental.

Clause 79: Tests for determining parentage

165. Part III of the Family Law Reform Act 1969 (the 1969 Act) enables the court to direct the use of blood tests in order to resolve a dispute about paternity which has arisen in the course of civil proceedings.

166. Regulations under the Act provide that samples may only be taken by a registered medical practitioner or someone who has been appointed as a tester under the Act. They also prescribe the procedure for the taking of samples, set conditions for the secure despatch of samples to a tester and prescribe the fees payable to samplers.

167. Blood testing under the Act is carried out by authorised testers who are appointed by the Lord Chancellor. There is no regulation of the laboratory conditions and standards under which testers work, or the frequency with which they undertake the work. Once a person is appointed as a tester, there is no mechanism to review his or her suitability.

168. This clause replaces the present system of approving individual paternity testers by one based on the accreditation of laboratories. This will allow the Lord Chancellor to regulate laboratory conditions and set minimum qualifications for the individual testers.

169. This clause also amends the legislation to address an issue raised by a recent High Court judgement (re O(Minor) and J(Minor)(Blood Tests: Constraint), decided by Mr Justice Wall on 24th January 2000). Section 21(3) of the Act provides that a blood sample may be taken from a person under the age of 16 if the person who has care and control of the child consents. In the judgement, it was held that the effect of this provision is that the court has no power to enforce a direction for the taking of a blood sample from a child under 16 to establish paternity if the person with care of the child refuses to consent to the sample being taken.

170. Subsection (2) amends section 20 of the 1969 Act to provide for tests to be carried out by a body which has been accredited either by the Lord Chancellor or by a body appointed by him for that purpose.

171. Subsection (3) amends section 21(3) of the 1969 Act to provide that, where the person with care and control of a child under 16 does not consent to the taking of a blood sample, the sample may be taken if the court considers that it would be in the best interests of the child to do so.

172. Subsection (4) amends section 22 of the 1969 Act which sets out procedural matters on which the Lord Chancellor may make regulations in two respects. First, an amendment replaces the current requirement that samples be taken by appointed individual medical practitioners with a provision enabling samples to be taken by registered medical practitioners or members of such professional bodies as may be prescribed by the regulations. Secondly, an amendment enables the Lord Chancellor to prescribe conditions which a body must meet to be eligible for accreditation.

173. Subsection (5) provides that neither this clause nor anything else in the Bill will affect proceedings to determine declarations of parentage which are pending when these provisions take effect.

174. It is also intended that the Government will bring section 23 of the Family Law Reform Act 1987 into force by commencement order in conjunction with these new provisions. Section 23 amended the 1969 Act to allow for other bodily samples as well as blood to be taken from the categories of people specified in the 1969 Act (the child, the mother and the putative father) and from any other party to the proceedings to resolve a dispute about parentage.

Clause 80: Declarations of status

175. Anyone who is living in England or Wales (or who has been habitually resident there for at least a year) can seek a declaration from the High Court or a county court that:

  • a named person is or was his parent; or

  • he is legitimate; or

  • he has or has not become a legitimated person (that is, in the same position as being born legitimate).

176. Declarations may be sought, for example, to acquire nationality or citizenship, to establish rights of inheritance or to amend a birth certification. Only the "child" in question (who may in fact be an adult) is entitled to apply for such a declaration. Both the child's parents, if they are still alive, must be joined as respondents to the proceedings.

177. Section 56 of the Family Law Reform Act 1986 (as substituted by section 22 of the Family Law Reform Act 1987) provides for the declaration. The Family Proceedings Rules provide that both parents must be respondents.

178. A "section 56" declaration is binding on the Crown and on all other persons. The declaration is without limit in time in the UK whether for the purpose of legal proceedings or for any other purpose. The legislation makes no provision for a declaration from the court that a named person is not the child's parent.

179. This clause replaces part of the existing section 56 of the Family Law Act 1986, and also amends sections 58 and 60 of that Act. The clause provides for any person to apply to a civil court for a declaration as to whether or not a person named in the application is or was the parent of another person so named. The intention of the new clause is to provide a single procedure for obtaining a declaration of parentage to replace the two free-standing provisions contained in the 1986 Act and in section 27 of the Child Support Act 1991 (which is modified to take account of the new procedure), and to widen the power to make such declarations.

180. Subsection (2) inserts a new section 55A in the 1986 Act which allows for an application for a declaration that a person is or is not the parent of another person.

New section 55A: Declarations of parentage

181. New section 55A(1) provides that any person may apply for a declaration as to whether or not a person named in the application is or was the parent of another person named in the application. The application may be made to the High Court, a county court or a magistrates' court.

182. New section 55A(2) provides that the court can consider such an application only if either of the persons named in the application is domiciled in England and Wales on the date of the application, or has been habitually resident in England and Wales throughout the period of one year ending with that date; or if either of the persons named in the application died before the period of one year ended and was at death domiciled in England and Wales, or had been habitually resident in England and Wales for one year preceding their death.

183. New section 55A(3) and (4) will enable any person to apply for a declaration of parentage, subject to the requirement that if the applicant is not the child or one of the alleged parents concerned, then he or she will have to show a sufficient personal interest in the determination of the application. If the court is not satisfied that this is the case, it must refuse to hear the application. A person with care must automatically be treated as having a sufficient personal interest. This requirement does not apply when the application is made by the Secretary of State.

184. New section 55A(5) provides that the court may refuse to determine an application where one of the persons named in it is a child, and it considers that to determine the matter would not be in the best interests of the child.

185. New section 55A(6) provides that where the court has refused to hear an application, it may order that the applicant is to require leave of the court to apply again for the same declaration.

186. New section 55A(7) provides for notification of a declaration of parentage to the Registrar General.

187. Subsection (3) of clause 80 removes the provision of section 58 of the 1986 Act that no declaration may be made by any court that any person is or was illegitimate. This is because the effect of a declaration of parentage could be that a child is or was illegitimate, which is inconsistent with the existing provision of section 58(5)(b).

188. Subsection (4) provides for a right of appeal from the magistrates' court to the High Court. This is in addition to the right of appeal to the High Court by way of case stated, that is, on the basis that the decision is wrong in law or magistrates have acted in excess of jurisdiction; or to apply to the High Court for leave to apply for judicial review. This right of appeal must be conferred expressly. Appeals to the Court of Appeal from the High Court and the county courts are governed by existing provisions in the Supreme Court Act 1981 and the County Courts Act 1984.

189. Subsection (5) introduces Schedule 8 which provides for consequential amendments and appeals.

190. Subsection (6) provides that neither this clause nor anything else in the Bill will affect proceedings about declarations of parentage which are pending when these provisions take effect.

Disqualification from driving

Clause 16: Disqualification from driving

191. Currently section 40 of the Child Support Act 1991, which applies only in England and Wales, enables the Secretary of State to apply to a magistrates' court for the issue of a warrant committing a non-resident parent to prison where distress action, garnishee proceedings or a charging order have failed to recover some, or all, of the child support maintenance outstanding.

192. If the court is satisfied that there has been wilful refusal or culpable neglect, it may issue a warrant for committal to prison for a maximum period of six weeks, or suspend the sentence. It has previously been held that the term "wilful refusal or culpable neglect" means that the conduct of the non-resident parent must amount to deliberate defiance or reckless disregard. The non-resident parent may be released from prison on payment of the amount stated on the warrant or have the period reduced for part payment.

193. This clause provides for a disqualification order to be made in relation to holding or obtaining a driving licence as an alternative to committal. Subsections (2) and (3) amend section 40 (the provision for committal) and insert a new section 40B (the further provision of disqualification from driving).

194. Subsection (1) inserts a new section 39A in the 1991 Act.

New section 39A: Commitment to prison and disqualification from driving

195. New section 39A(1) provides that this section applies where the Secretary of State has tried to obtain the amount outstanding by distress or enforcement through the county courts.

196. New section 39A(2) provides for the courts to be able to consider either committal or disqualification from driving.

197. New section 39A(3) provides for the courts to consider:

  • whether a driving licence is needed by the liable person to earn a living;

  • the financial circumstances of the liable person; and

  • whether there has been wilful refusal or culpable neglect.

198. New section 39A(4) provides for the Secretary of State and the liable person to make representations to court on which penalty should be imposed.

199. New section 39A(5) defines "driving licence".

200. New section 39A(6) modifies section 39A for Scotland.

201. Subsection (2) of clause 16 amends section 40 of the 1991 Act which provides for committal by omitting subsections (1) and (2) which set out the present powers of the court and what must be considered. These matters are now covered by the new section 39A(1) and (3) above.

202. Subsection (3) provides for a new section 40B to be inserted before section 41.

New section 40B: Disqualification from driving: further provision

203. New section 40B(1) provides a power for the court to disqualify the liable person from driving if the courts agree that he has wilfully refused to pay or been guilty of culpable neglect in connection with paying maintenance.

    (1)(a) provides for the disqualification order to apply for a period not exceeding two years.

    (1)(b) provides that the disqualification order may be suspended.

204. New section 40B(2) provides that the courts cannot make both a disqualification order and warrant for committal at the same time.

205. New section 40B(3) provides that the order should include the amount of the arrears included in the liability order and the court costs.

206. New section 40B(4) provides for the courts to require the liable person to produce his driving licence (defined in section 108(1) of the Road Traffic Act 1988).

207. New section 40B(5) provides that the courts may lift the order, or substitute a shorter disqualification period, if part of the amount outstanding is paid, and must revoke the disqualification if payment is made in full before the end of the disqualification period.

208. New section 40B(6) provides for the Secretary of State to be able to give his views to the court on the amount that should be paid before the disqualification order is lifted. It also provides for the liable person to reply to the representations.

209. New section 40B(7) provides for a further application to be made to the courts if any amount remains outstanding at the end of the disqualification period.

210. New section 40B(8) provides for the court, on imposing the disqualification, to notify the Secretary of State of the fact that a disqualification order has been made, amended or lifted, and to send the Secretary of State the licence if it is produced in court. In practice, the notice and the licence will be sent to the DVLA.

211. New section 40B(9) provides for a reference to the disqualification to be made in section 44 of the Power of Criminal Courts Act 1973. This enables the police to require production of the licence if it is not given to the courts. Failure to produce the licence in these circumstances is a criminal offence punishable by a fine of up to £1,000.

212. New section 40B(10) provides for Section 80 of the Magistrates Court Act 1980 to apply to a disqualification order, to reflect provisions currently in section 40. This will enable a liable person to be searched in court and money found applied against the amount owing.

213. New section 40B(11) provides for regulations to be made, prescribing the way in which disqualification orders will operate, and new section 40B(12) modifies this section in its application to Scotland.

Clause 17: Civil Imprisonment: Scotland

214. Subsection (1) disapplies subsections (12), (13) and (14) of section 40 of the 1991 Act which concerns civil imprisonment in Scotland for failure to pay sums due under a liability order.

215. Subsection (2) inserts new section 40A into the 1991 Act. The new section provides the procedure for the sheriff to follow if he is satisfied that it is appropriate to commit a liable person to prison. The new section is comparable in its scope to section 40 of the 1991 Act for England and Wales (see the introduction to clause 16).

New section 40A: Commitment to Prison - Scotland

216. New section 40A(1) provides that the Secretary of State may apply to the sheriff for an order committing the liable person to prison where the Secretary of State has been unable to recover arrears of child maintenance from him.

217. New section 40A(2) provides that the sheriff must, in the liable person's presence, enquire about his ability to pay and whether he has wilfully refused to pay or has culpably neglected to do so.

218. New section 40A(3) provides that where the sheriff is satisfied that the liable person has wilfully refused or culpably neglected to pay, the sheriff may issue a warrant for his committal to prison or may fix a term of imprisonment but postpone the committal of the liable person to prison. The sheriff may impose conditions on the postponement, for example, that the liable person makes regular payments of maintenance.

219. New section 40A(4) provides that the warrant which the sheriff issues will be in respect of the arrears of maintenance and the Secretary of State's expenses in raising the proceedings for committal to prison. The warrant must state what the total amount is.

220. New section 40A(5) prohibits a warrant being issued in respect of a person who is under 18 years of age.

221. New section 40A(6) provides that the warrant will order the imprisonment of the liable person for a specified period but that he may be released on payment of the amount stated in the warrant - unless he is in custody for some other reason.

222. New section 40A(7) provides that the maximum period of imprisonment is 6 weeks.

223. New section 40A(8) gives the Secretary of State power in regulations to provide for the period of imprisonment to be reduced where the outstanding amount has been partly paid.

224. New section 40A(9) provides that the warrant may be directed to such person as the sheriff thinks fit.

225. New section 40A(10) gives the Court of Session power to make subordinate legislation regulating practice and procedure in the Sheriff Court in relation to civil imprisonment for child support purposes. The power will be exercised through Rules of Court made in Acts of Sederunt. The Court of Session will have power to make provision:

  • about the form of any warrant issued;

  • with respect to renewing applications where no warrant is issued or no term of imprisonment has been fixed;

  • that an employer's statement about a liable person's wages is to be sufficient evidence of the amount of those wages;

  • for the sheriff citing a liable person to appear before him for the purposes of an inquiry into the liable person's behaviour and means; and, if the liable person does not obey the citation, for the sheriff issuing a citation for him to appear before the sheriff and, if necessary, warrant for his arrest;

  • for the sheriff issuing a warrant for the liable person's arrest, without issuing a citation, for the purposes of enabling the inquiry into his means and conduct to be heard;

  • as to the execution of the warrant of arrest.

Financial penalties

Clause 18: Financial Penalties

226. Early attempts to implement interest charges on arrears of child support maintenance were abandoned from April 1995. The calculations were complex and difficult to explain to clients. An alternative provision to interest was introduced by the Child Support Act 1995 but did not come into force. Neither of these provisions will have effect in the new scheme.

227. Instead, a simpler, discretionary financial penalty will be introduced. The intention is for the Secretary of State to have discretion to impose a financial penalty of up to 25 per cent of the amount owed. This will be levied for each week in which payment was not made, but will not be compounded. The charge will not be child support maintenance but will be an administrative penalty payable to the Department of Social Security in recognition of the additional work involved in pursuing late or non-payment and will be paid into the Consolidated Fund.

228. It is intended that the penalty will not be imposed if a missed payment is paid within a reasonable period or the payment was missed for good reason, such as sickness, or acceptable arrangements are made to pay the missing amount and to continue to pay over an agreed period.

229. It is envisaged that the penalty will rarely need to be applied but that it will provide a useful incentive for persuading non-resident parents to meet their responsibilities.

230. This clause makes an amendment to section 41 and replaces section 41A of the 1991 Act. It removes the provisions on charging interest and inserts new provisions for financial penalties to be charged.

231. Subsection (1) amends section 41 of the 1991 Act to remove the charging of interest on arrears. Transitional provisions will allow the Secretary of State to continue to collect and enforce interest charges already imposed.

232. Subsection (2) substitutes section 41A of the 1991 Act with a new provision on financial penalties.

New section 41A: Penalty payments

233. New section 41A(1) provides for regulations that allow the Secretary of State to require a non-resident parent who is late in paying child support maintenance to make a penalty payment. Regulations will further provide the way in which penalties are calculated.

234. New section 41A(2) makes the amount of a penalty payment discretionary but limits the amount to be charged to 25 per cent of the amount due for that week.

235. New section 41A(3) provides that the amount of the child support maintenance arrears remains due even when a financial penalty has been imposed. The financial penalty is not child support maintenance and is not passed on to the parent with care.

236. New section 41A(4) provides for regulations to:

    (a) state at what point in time a financial penalty becomes payable; and

    (b) allow all or part of the penalty to be waived at the discretion of the Secretary of State. This will depend on reasons given for late or non-payment and the level of co-operation in paying the arrears.

237. New section 41A(5) allows regulations on collection and enforcement to apply to penalty payments in the same way as they do to child maintenance payments. Therefore the Secretary of State will have exactly the same powers to collect and enforce penalty payments and may combine this action with action to collect and enforce child maintenance.

238. New section 41A(6) provides that any payment collected must be paid into the Consolidated Fund and is therefore not paid over to the parent with care.

Clause 19: Reduced benefit decisions

239. This clause replaces section 46 of the Child Support Act 1991.

New section 46: Reduced benefit decisions

240. New section 46(1) applies where a parent with care has asked the Secretary of State not to pursue child maintenance, or failed to provide information or refused to take a scientific test such as a DNA test. For example, where the parent with care fears violence from the non-resident parent if he were to be pursued for maintenance.

241. New section 46(2) enables the Secretary of State to require the parent with care to provide reasons why she has "good cause" either to ask the Secretary of State not to act under section 6, or to fail to give information as required by section 6, or to refuse to take a scientific test. When a parent with care is in receipt of a benefit referred to in, or prescribed for, the purposes of section 6(1) and asks the Secretary of State not to act, or refuses to take a test, the parent with care will be interviewed. If she is unsure whether she wants to ask the Secretary of State not to act she will be given a specified period to make her decision and give her reasons.

242. New section 46(3) provides that when the specified period has expired the Secretary of State must make a decision, based on the information provided by the parent with care, on whether there are reasonable grounds for believing that she or her child(ren) would be at a risk of harm or undue distress as a consequence of the Secretary of State recovering child support maintenance from the non-resident parent, insisting on the provision of information or if she were to agree to a scientific test. The term "reduced benefit decision" will replace the term "reduced benefit direction" in the existing Act.

243. "Specified" is defined in section 46(10), which gives power to prescribe a period. The Government intends to prescribe four weeks, from the date when the parent with care is given notice asking for her reasons under section 46(2).

244. New section 46(4) provides that if the Secretary of State considers that there are reasonable grounds for believing that the parent with care or her child would be at risk of harm or undue distress, then he is to take no further action under section 46, and that she will be notified of this.

245. New section 46(5) to (10) set out the same provisions as section 46 of the 1991 Child Support Act, but substitutes some of the existing terminology. For example, reduced benefit direction in section 46 is changed to reduced benefit decision under this legislation.

246. New section 46(6) enables the Secretary of State to require the parent to state whether she still does not wish him to act under section 6(3) and to give her reasons.


Clause 20: Voluntary payments

247. Liability to pay child support usually begins on the day that the non-resident parent is told about the application for a maintenance calculation. However, there will usually be some delay between this date and the date that a maintenance calculation is completed. This means that arrears of maintenance build before parents know how much they should be paying. Voluntary payments made during this period can reduce the debt and provide financial support for the children while child maintenance is being worked out.

248. However, at present voluntary payments are not defined and have no statutory status. The CSA follows policy guidelines in determining which payments can be set off against arrears of maintenance. The Government considers that the use of the discretion is not providing sufficient reassurance to parents that all cases are being treated in the same way. This in turn provides a disincentive to make payments for the children before the maintenance calculation is completed. The Government therefore proposes to give statutory recognition to voluntary payments.

249. This clause gives statutory recognition to voluntary payments by inserting a new section in the 1991 Act which establishes clearly the range of payments to be covered and allowing such payments to be offset against child support arrears and current maintenance. Subsections (2) and (3) of this clause amend the provision for repayments of overpaid child support to cover the voluntary payments that exceed any child maintenance due.

250. Subsection (1) inserts a new section 28J in the 1991 Act.

New section 28J: Voluntary payments

251. New section 28J(1) provides that this section applies where: a person has made an application for a maintenance calculation, or is treated as having made an application, under section 6 of the 1991 Act; the application has not yet been determined; and the non-resident parent actually makes a voluntary payment.

252. Section 6 of the 1991 Act is introduced by clause 3 of this Bill. It provides that a parent with care who claims or receives Income Support or income-based Jobseeker's Allowance can be treated as having applied for a maintenance calculation.

253. New section 28J(2) defines the term "voluntary payment" as:

subsection (2)(a): a payment on account of child maintenance which the non-resident parent expects to pay. The payment may be based on an estimate provided to him by the Secretary of State or based on an amount he has worked out for himself as being due; and

subsection (2)(b): a payment which is made before the actual calculation has been notified, or the application for maintenance determined.

254. New section 28J(3) provides for regulations that will set out circumstances in which voluntary payments can be taken into account.

Subsection (3)(a) provides for voluntary payments to be offset against the arrears which have built up before the non-resident parent was notified of the calculation.

Subsection (3)(b) provides for the balance to be offset against future liability, to the extent that the voluntary payments exceed any outstanding debt.

255. New section 28J(4) provides for conditions to be set regarding payments and to whom they can be paid. It allows for voluntary payments to be made via the CSA, direct to the parent with care, or another specified party.

256. New section 28J(5) provides a general power for regulations about voluntary payments and, in particular, about the type of payment that can be accepted.

Subsection (5)(a) provides for regulations to specify which payments are, and which are not, to be treated as a voluntary payment. This will relate to all payments whether they are paid to the parent with care or any other party. It is intended that as well as cash payments, any payment that is made for food, shelter and warmth will normally be taken into account. However, payments in kind, that is, where the non-resident parent spends money on other items for the child, will not be taken into account.

Subsection (5)(b) provides for regulations to specify the extent and the circumstances in which these payments can be taken into account once it is accepted that the payment is of the right type to be counted as a voluntary payment.

257. Subsections (2) to (4) of clause 20 amend section 41B of the 1991 Act which provides for the lump-sum repayment to the non-resident parent of maintenance that he has overpaid. This provision takes effect when the overpayment cannot be repaid in a reasonable time by offsetting it against future child support liability. The intention of this amendment is to treat overpayments of voluntary payments in the same way as overpayments of child support maintenance.

258. Subsection (3) provides for a new section to be inserted after subsection (1) of section 41B, which allows the provisions of section 41B to apply where a voluntary payment has been made, and:

  • it subsequently turns out that there is no maintenance liability due at all; or

  • the non-resident parent has paid more, in voluntary payments, than the total of arrears.

259. Subsection (4) substitutes subsection (7) of section 41B. The substituted subsection (7) will provide that a payment can be treated as being an overpayment of child support maintenance made by a non-resident parent where:

  • a payment was made but the maintenance calculation turns out not to be valid (for example where a person who believes himself to be the non-resident parent turns out not to be the non-resident parent or where the CSA do not have jurisdiction over a case); and

  • a voluntary payment has been made but there is no liability to pay child maintenance.

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