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The same is true of prison provision. As with curfew orders, putting people in jail costs the taxpayer extra money, but it gets no extra money for the parent with care. It does not affect liability positively for anyone. I would be much happier if we removed the provision for imprisoning people for these offences and concentrated on some of the important improvements that the Government are making, such as attacking joint accounts. It is important to concentrate on what produces money, what avoids human rights legislation cases and the core activity of the commission.

It is my experience that, if one takes away someone’s driving licence, they just drive anyway, which has perverse consequences for those who have accidents because that person is driving uninsured. I do not have evidence or figures for that. It is always easy to say of the enforcement powers in the three clauses, “Well, the Government or the commission will have them available. They are always a prospective threat and that might make people a bit more responsive to their duties and legal responsibilities”. For my money, I would rather we had a cut-down, nuts and bolts, reduced revision of the way we attack sources of money, because the public perfectly well understand that if money is owed, you attack the money source. People find it difficult to understand why people are sent to jail at vast cost, even if it is only for a short time. Never mind the high principle of human rights; from a practical point of view, this is a distraction and it does not work. I am very sceptical about it. We should do something else with the time of the staff in order to realise money for parents with care. I hope that the Government will think carefully about this.

Baroness Hollis of Heigham: I dissociate myself from the remarks of the noble Lord, Lord Kirkwood. If someone is in regular employment and there are money resources, the situation is straightforward. You can put a direct debit on the account via the employer and get the money. The problem arises with the self-employed and those with no money resources. That happens with the young, the feckless, those who

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change jobs rapidly and so on. How do we make the sanctions bite if there are no financial resources on which to do so?

No one wants to take a passport away, no one wants to take a driving licence away and certainly no one wants to see someone go to prison. I presume that we would all much prefer to see community sentences and the like. But there have to be sanctions if even the statutory system is not to be voluntary, let alone to allow the voluntary system to remain in effect. The difficulty is that those who are reluctant to pay and fail to do so are often precisely those who do not own a house, so we cannot get a garnishee order; they do not have goods worth seizing, so bailiffs cannot be used; and they are not in regular, steady PAYE employment on which a direct debit can produce a flow of money. Where do you go except to the individual concerned?

I agree absolutely with the noble Lord that no one wants to do this. It is counterintuitive to go for a prison order which stops him working, a curfew order which makes him angry or the removal of his driving licence which runs the risk of him driving uninsured. But if we do not have access to the individual’s financial resources, and with this difficult group we very often do not, where do we go, apart from saying that there are no sanctions to apply? That is why I hope that my noble friend will persist in this. I hope that the success of the new system and CMEC will mean that there will be no need to use these sanctions, but I believe that they are necessary as a back-up in order to get some non-resident parents to take their responsibilities seriously.

Lord McKenzie of Luton: This is an important group of amendments, all of which relate in some way to the operation of the commission’s enforcement regime, although each amendment produces a number of issues within itself. For that reason, I would like to address them under separate headings. I will make reference to the one government amendment in the group and then deal more generally with the clause stand part issues that have been raised.

Amendment No. 103 would give the parent with care the right to make representations to or attend any enforcement hearings. It would also allow the parent with care to apply directly to the court or the tribunal for enforcement action. I recognise that this is an issue of major concern and indeed I welcome the chance to debate it. The parent with care’s role in enforcement was discussed in the other place and was raised by the Select Committee on Work and Pensions. It is therefore something about which we have thought long and hard. I accept entirely that the commission needs to engage the parent with care when taking enforcement action against the defaulting non-resident parent. Indeed, it would be beneficial for the parent with care to disclose to the commission any information that he or she may have that is relevant to the non-resident parent’s financial situation. But we need to remind ourselves of the commission’s role. Once a case has reached the state maintenance service, the commission is responsible for taking action to enforce payments. However, it has to be mindful of the position not just of the parent

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with care but of any other parents with care involved with the non-resident parent. It also, of course, needs to consider the welfare of any children that may be affected.

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The commission’s role is not solely to be the representative of a single parent with care. It is not the same relationship as a solicitor would have with a client. Where enforcement hearings are held in open court, the parent with care is able to watch proceedings, although they have no right to make representations to the court. I understand that, in practice, magistrates’ courts usually hear such cases in the family court where the magistrates have the power to exclude persons not directly involved in the case. The court does have discretion to permit a person who has adequate grounds for attendance to be present, but they would still have no right to make representations. It is hard to see what the parent with care could add to assist the court in reaching a decision.

In relation to the parent with care taking their own court action, there are a number of practical considerations. In order to streamline the enforcement process and to allow the commission to take swift and effective enforcement action, a number of the provisions in the Bill have been made administrative—for example, deducting money from bank accounts, issuing liability orders and removing passports—which adds to the current administrative provision of applying a deduction-from-earnings order. Were parents with care able to pursue the enforcement of maintenance through the courts, these administrative measures would not be available to them. With these additional powers, we are confident that the commission will take enforcement action within a reasonable time—that is the nub of the issue here—which will make it unlikely for the parent with care to feel the need to take independent enforcement action through the courts, particularly as there are opportunities for them to make what information they have that may assist the case available to the commission. There is also a real danger that, if the commission and the parent with care had concurrent or interchangeable abilities to enforce, there would be risk of overlap and duplication, which could cause confusion and increase costs.

Equally, enabling parents with care to enforce the commission’s maintenance assessments might provide the commission with a perverse incentive to divest itself of difficult cases, leaving parents with care or legal aid to meet the cost of enforcement. If legal aid was not provided, a two-tier system would be created where only parents with care with the financial means to do so would have this option open to them.

The obligation to pay child maintenance under the Child Support Act is not a civil debt in the normal sense. In deciding whether to take enforcement action, the commission must not only have regard to the interests of the parent with care, but consider the position of the non-resident parent and the welfare of all the children involved. It would not be appropriate to allow parents with care to take their own enforcement action. However, I accept that we must

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build confidence in the fact that the Government must not and will not abandon their responsibility to children.

Amendments Nos. 179 and 180 would set out in primary legislation that the non-resident parent has the opportunity to make representations to the commission before it makes an order to administratively disqualify him or her from holding or obtaining a travel authorisation. It is of course important that non-resident parents are able to make representations to the commission before such a serious form of enforcement is imposed. We intend that the non-resident parent will have the opportunity to put forward any representations on receipt of the notice that they receive from the commission of the intention to disqualify him or her from holding or obtaining a travel authorisation. A requirement to this effect will be set out in secondary legislation.

The Government acknowledge that disqualifying a person from holding a travel authorisation is a very serious measure. It will be employed only after other, more direct, forms of enforcement have been attempted and maintenance remains unpaid. Any non-resident parent who may be at risk of losing their passport will have had several opportunities at earlier stages—

Lord Skelmersdale: This will be the subject of a discrete amendment a little later today.

Lord McKenzie of Luton: We are dealing with Amendments Nos. 179 and 180, which are still in this group, as I understand it. The noble Lord may be referring to travel documentation.

Lord Skelmersdale: I am, yes.

Lord McKenzie of Luton: We have a separate amendment on that, but we are touching on driving licences here. There is a discrete amendment, but these amendments are part of this group. However, the noble Lord is right that we have also strayed into travel authorisation. I shall skip that part of my notes and return to it later.

Amendment No. 181 would set out in primary legislation that the commission must consider the impact on the non-resident parent’s ability to pay the outstanding child maintenance should he or she be disqualified from holding or obtaining a driving licence. I agree that it is important that, before such a measure is imposed, consideration is given to whether a non-resident parent needs a driving licence to earn a living. That is precisely why new Section 40B(A4)(a) in Clause 28 as well as existing legislation on how the current process operates make it clear that the court should, in the presence of the non-resident parent, inquire whether the driving licence is needed by him to earn a living. I appreciate that noble Lords may therefore question why the commission is not duty bound to consider this as well before making an application to the court. However, including such a provision in the legislation is not necessary.



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Lord Skelmersdale: Why?

Lord McKenzie of Luton: I am just about to cover that. The Child Support Agency, or the commission in the future, will make an application to the court based on a determination of the facts at hand. Where the agency or the commission are aware of the non-resident parent’s occupation, this factor will be taken into account in determining whether an application will be made for disqualification. The CSA or the commission is highly unlikely to ask the court to disqualify the non-resident parent from driving if the non-resident parent’s ability to earn a living would be seriously affected. This would not be in the best long-term interests of the children and it would be against the commission’s main objective. Ultimately, however, it will be the court’s decision. The court has the power to summon the non-resident parent, to issue a warrant should he or she fail to appear, and to inquire in that person’s presence whether he or she needs a driving licence to earn a living, before it reaches a decision. I should also point out that the existing driving licence provisions have been in operation since 2001. In the vast majority of cases, the non-resident parent receives an actual or suspended sentence. Clause 28 simply restructures existing provisions.

Amendment No. 187 would enable the Secretary of State to make regulations allowing the commission to recover maintenance payments from non-resident parents who have moved outside the United Kingdom and do not remain in the commission’s jurisdiction by virtue of Section 44 of the Child Support Act 1991—an issue raised by the noble Lord, Lord Kirkwood, in some detail. That section gives the CSA currently, and the commission in the future, jurisdiction where all parties to the maintenance calculation are resident in the United Kingdom, except in prescribed circumstances where the non-resident parent may reside abroad but is employed in the services of the Crown; in the forces, including as a reservist; by a company registered in the UK; or by a body of prescribed description. I agree that it would not be right for non-resident parents outside these limited exemptions to escape their financial obligations towards their children by moving abroad, but I am pleased to inform noble Lords that this is generally not the case.

The United Kingdom has a system for administering international child and spousal maintenance cases. There are a number of international conventions and agreements—the noble Lord, Lord Kirkwood, referred to these—which allow maintenance claims from UK-resident parents to secure payments from non-resident parents who move abroad. International agreements include the Hague conventions and EU law, and of course arrangements are established under the Maintenance Orders (Reciprocal Enforcement) Act 1972.

In essence, the system works by UK courts sending details of the maintenance liability to a foreign jurisdiction where the claimant is resident in the UK. The foreign jurisdiction then applies its domestic collection and enforcement mechanisms to recover the amount due. Those mechanisms in turn refer the maintenance received to the claimant. The process is reversed where the

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debtor is resident in the UK and the claimant resides outside. Where a non-resident parent is or moves outside the Child Support Agency’s jurisdiction, a maintenance calculation cannot be made or pursued. The parent with care must then either reach an agreement for maintenance provisions with the non-resident parent or apply to their local magistrates’ court or family proceedings court to secure maintenance from an ex-partner living abroad.

The UK has reciprocal agreements with over 100 states and territories to enable such claims to be made and recently established a new bilateral agreement with the USA to extend the arrangements there. There is currently an EU proposal for a new regulation—referred to by the noble Lord, Lord Kirkwood—on such claims in Europe, which the UK hopes to be able to opt into at the conclusion of negotiations. I have no precise data on when we expect those negotiations to be concluded. I am also pleased to inform the Committee that a new global Hague convention on family maintenance was successfully concluded in November 2007, which we hope will further extend the coverage of such arrangements in the future.

I realise that Members of the Committee may be concerned about what happens to any outstanding arrears that the non-resident parent may owe when he or she moves outside the commission’s jurisdiction. I do, of course, have the greatest sympathy with parents with care who find themselves in this situation, but it would not be possible for the commission to take direct action to recover the money owed, nor could the arrears be included within any subsequent international maintenance order made through the courts.

I am sure that Members of the Committee will understand that we cannot apply UK domestic legislation across international boundaries. We could not, for example, give the commission the power to apply a deduction from earnings order against any person where the employer is not registered as a company within the UK. It is simply not possible. Nor is it currently possible under the terms of the 1972 Act to include arrears of child maintenance accrued in the UK within an international maintenance order. We do not, however, rule anything out in the longer term; this may be something that we can address at a future legislative opportunity. It may also be the case that, should the non-resident parent have any property within the United Kingdom, the CSA or the commission could apply for a charging order against that property, notwithstanding the fact that the non-resident parent may reside outside the UK. We will certainly continue to investigate that possibility. I hope that Members of the Committee will appreciate that an adequate system for dealing with non-resident parents who move abroad already exists, albeit with the caveat concerning arrears that I have just mentioned

Amendment No. 213 would give the appeals tribunal the power to question the underlying maintenance calculation when considering a liability order appeal. By the time a liability order is made, the non-resident parent will already have had opportunity to appeal to the tribunal against the maintenance calculation at the

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point when it was made; there are also provisions for late appeals. This amendment would allow the non-compliant non-resident parent a second bite at the cherry. It could delay enforcement action and be additional work for the appeals tribunals. We are, however, putting appropriate safeguards in place by providing appeal rights based on those matters that magistrates can currently consider when making a court liability order. The appeals tribunal will have the opportunity to question whether the person is liable, whether they have failed to pay an amount of child maintenance and if the amount of the liability order exceeds the amount of maintenance owing. It is important to remember that a liability order is made because the non-resident parent has failed to pay. If we give them another opportunity to challenge the maintenance calculation, it will be another opportunity to delay payment for their children. We know, sadly, that some will use every opportunity to do that.

Finally, on the Government’s Amendment No. 219, following concerns raised over the recovery of historic debt as this Bill has progressed through the other place, we are introducing this amendment to ensure that all new and existing powers to collect child maintenance can be used on debts of any age. We have previously amended regulations so that there is no longer a six-year time limit for an application for a liability order on debt that accrued on or after 13 July 2000. However, some debt had already reached six years of age before then and so is still subject to a limitation period. We estimate that this pre-July 2000 debt accounts for more than £700 million. It can currently be collected only through a deduction-from-earnings order and not through court-based recovery methods.

The amendment ensures that, when the provision for the new administrative liability order comes into force, the same enforcement mechanisms—liability orders, deduction orders, deduction-from-earnings orders—can be available for use on all child maintenance debt regardless of the date on which it accrued. However, the new administrative liability order will not be used in relation to pre-July 2000 debt as a matter of course. Because this debt was previously time-barred as far as court action was concerned, it will be important to consider in each case whether enforcement action is justified.

I shall speak as briefly as I can to the issues raised under clause stand part and deal first with Clause 26 and curfew orders. As both my noble friend Lady Hollis and the noble Lord, Lord Kirkwood, recognised, those are at the extreme end of our enforcement process, but they are important. Clause 26 enables the Child Maintenance Enforcement Commission to make an application to the court for a curfew order where the non-resident parent wilfully refuses or culpably neglects to pay maintenance. Curfew orders are intended to serve as an effective alternative to committal. They should not interfere with the non-resident parent’s ability to earn a living and should allow him or her to continue with any pre-existing contact or custody arrangement with the children. That is an important point. At the same time, however, they will provide a powerful incentive to co-operate.



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Furthermore, it is envisaged that the use of such powers will contribute to changing the culture of non-compliance and demonstrate that the commission will take strong measures to deal with it swiftly. The length of the curfew order will be at the discretion of the court. Electronic monitoring has been operating throughout England and Wales since 1999 and is run by private companies. About 15,500 persons are subject to electronic monitoring at any one time; about 58 per cent of people complete a curfew order successfully without any enforcement action being applied.

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Lord Kirkwood of Kirkhope: The Minister is working very hard, and we are all grateful for that, but the logic of the noble Baroness’s case was that the measures would be resorted to only after the financial routes had been exhausted. Will that always be the case?

Lord McKenzie of Luton: It will certainly generally be the case; we want to use the whole panoply of enforcement action available before we reach the orders. I am not sure that I could say that that will be the situation in every case. In any event, our estimate is that there may be 700 to 750 cases per year maximum to which the orders might apply, so it is a relatively small percentage of the likely total case load of the CSA. It would be pretty much a last resort, but preferable to committal proceedings, where there are the issues that I outlined, such as the ability to continue with contact arrangements. I have perhaps said enough about why we think that those are important provisions and why we want to retain them in the Bill.

The noble Lord also referred to committal to prison under Clause 27. The Child Support Agency can already apply to the court seeking to have a non-compliant non-resident parent committed to prison for a maximum of six weeks. The clause simply restructures the existing provisions to be consistent with other provisions in the Bill. The clause will aid the effective operation of the existing committal provisions and we certainly want it to stand part of the Bill.

On disqualification from driving, the CSA can currently apply to the court to seek to have the non-resident parent disqualified from holding or obtaining a driving licence for up to two years. Again, the changes to the driving disqualification panels align amendments to the existing committal orders, the new legislation on curfew orders and the administrative power to disqualify the non-resident parent from holding or obtaining travel authorisation. That is an important part of our armoury to ensure that we have effective compliance.

Having said all that, I ask noble Lords not to press the amendments, with the exception of offering support for the government amendment, for the reasons that I have outlined.


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