Family Law Week Email Subscription3PBDevon County CouncilGarden CourtCoram Chambersimage of 4 Paper Buildings logoHarcourt Chamberssite by Zehuti

Child Maintenance and Other Payments Act 2008 - new enforcement provisions

David Burrows sets out the enforcement provisions now in force under the Child Maintenance and Other Payments Act 2008

Picture of David Burrows

David Burrows, Solicitor Advocate, David Burrows Solicitors

The new Child Maintenance and Other Payments Act 2008 ('CMOPA 2008') (see Child Maintenance & Other Payments Act 2008) has added a variety of new enforcement provisions to the child support scheme by amendment of the existing – already much amended – Child Support Act 1991 ('CSA 1991': section numbers below refer to CSA 1991, though many will have been imported into that Act by CMOPA 2008). The powers derived from the 2008 Act will be added to the existing provisions and will be operated by the Child Support Maintenance Commission (the 'Commission'). The resultant new scheme for enforcement of arrears will not come into operation till 2009 (says the Commission); and none of the new provisions can operate till an extensive set of delegated legislation is made by the Secretary of State for Work and Pensions.

In what follows a distinction will be drawn between enforcement of arrears by administrative direction as distinct from enforcement by court order; though under the amendments introduced by the 2008 Act all means of enforcement (court ordered or administrative) are called 'orders'. Hitherto, enforcement has been limited to a deduction from earnings order (CSA 1993 s 31, an example of administrative 'order' imposed by the Secretary of State); and a defined range of enforcements available once a liability order has been obtained from the magistrates' court (s 33): distress (sending in the bailiffs: s 35); application in the county court (charging order or third party debt order: s 36); and committal or disqualification from driving on complaint to the magistrates’ court (ss 39A and 40).

New enforcement provisions
Under the scheme set up by CMOPA 2008 ss 20-30 various new forms of enforcement are introduced; and the liability order (now under s 32M) becomes an administrative direction. The new provisions will then be introduced alongside the existing forms of enforcement under CSA 1991 ss 35-40. In addition to the recast liability order the new enforcement provisions comprise: power to deduct continuing payments of child maintenance or arrears direct from a person’s bank or other account; a specific form of freezing order, obtainable in the High Court; powers for the magistrates to impose a curfew and removal of passports alongside the existing committal and disqualification orders; and the power to recover from the estate of a dead liable parent.

Regular deduction orders
A regular deduction order can be imposed by the Commission where a person fails to pay ‘an amount of child support maintenance' (a person fails to pay child support maintenance if he fails to pay it to a person with care, or to the Commission (ss 29(3)(a) and 32A(9)) and that person has a deposit or other account. In these circumstances payments can be ordered (ie by direction of the Commission) to be deducted direct from that account (s 32A(1). Once the order has been made, then, as with payments under a deduction from earnings order, it can be used to secure payment of arrears and continuing payments, or both, from the liable person’s account (s 32A(2)). Where an account is held jointly by a liable person with a third party (eg non-resident parent and his new wife or business associate) then both joint account holders must be told of the proposal to attach the account in this way and have an opportunity to ‘make representations’ (s 32B(1)).

Section 32C gives the Secretary of State power to provide for the Commission to be asked to review the making of a regular deduction order and for an appeals against the order (s 32C(4)). On the hearing of the appeal the appellate court (none has yet been specified) ‘shall not question the maintenance calculation by reference to which the … order was made’ (ss 32D(5); and see ss 32J(6), 39H(4)(b), 20(7A): the same provision as already in the 1991 Act at s 32(6))  The prescribed bases for appeal to the magistrates against a deduction from earnings order are very narrow in deed: it remains to be seen whether the bases of appeal against these orders are any wider or fairer.

Where a maintenance calculation is ‘under appeal’ to the First-tier or the Upper Tribunal or higher, then the Commission can only impose an order under s 32A if the amounts involved in the order would not be affected were the appeal to succeed, or where to make an order, despite the appeal, ‘would nonetheless be fair in all the circumstances’ (s 32A(3)). Used fairly by the Commission this will be of benefit to children, since many attempts to enforce at present are halted by appeals (and see Farley v Child Support Agency [2006] UKHL 31, [2006] 2 FLR 1243 at [33]).

Lump sum deduction orders
A lump sum deduction order (ss 32E and 32F) can be made where a person has failed to pay child support maintenance, he has a deposit or other savings account or he is owed money by third party (s 32E(1)). This is, in effect, a third party debt order by administrative direction (ie not through the courts). A procedural framework for these orders is set out in the Act, as follows:

Upon this process being complete the order operates to require the deposit-taker or third party to pay the Commission any outstanding arrears, or as much of the arrears as they hold (s 32H). Where a calculation is under appeal, there are identical provisions to those in s 32A(3) (above) to enable interim and final orders to be made despite the appeal process (ss 32E(5) and 32F(5)). Section 32J(6) enables the Secretary of State to provide for 'any person affected by' a lump sum deduction order to appeal: how wide will be the appeal grounds remains to be seen. On the hearing of the appeal the appellate court (none has yet been specified) ‘shall not question the maintenance calculation by reference to which the … order was made’ (s 32J(6); cf s 32D(5) above).

Avoidance prevention orders
The Commission will have powers to apply to the High Court for the freezing of the assets of a liable person (s 32L) as follows:

If a step is taken by a liable person which render ineffective attempts by the Commission to recover arrears, or a disposition under s 32L(2) would have that effect, then the court is entitled to assume that a liable person is intending to avoid payment of child support maintenance (s 32L(7)).

This provision will go some way to reverse Department of Social Security v Butler [1995] 1 WLR 1528, [1996] 1 FLR 65 where the Court of Appeal held that it was not open to the Secretary of State to apply to freeze a liable parent's assets. However, s 32L(1) limits the restraint of disposal only to where a disposition is anticipated; whereas a freezing order under Civil Procedure Act 1997 s 7 (formerly a Mareva order) is appreciably wider. It remains to be seen whether High Court judges will be willing to use their inherent jurisdiction (as did Anthony Lincoln J when dealing with an application under (Matrimonial Causes Act 1973 s 37(2) in Shipman v Shipman [1991] 1 FLR 250) and to freeze assets under powers wider than those set out in s 33L(1) and (2) if the s33L conditions are not precisely met.

Recovery from deceased's estate
CSA 1991 s 43A has been added to the original Act to enable the Commission to seek arrears from the estate of a parent who died owing arrears (s 43A(1)). Delegated legislation may provide for the deceased's personal representatives to pursue an 'appeal or otherwise' on his behalf (s 43A(3)).

Liability orders
In the original version of CSA 1991 s 33 provided for a liability order made by the magistrates. The original liability order has gone: s 33 is will be repealed by the new Act.  A new ‘liability order’ emerges under s 32M described by CMOPA 2008 s 25 as an 'administrative liability order'. The same liability ‘order’ can therefore now be deployed by the Commission to seek the original remedies – distress, county court order and committal – as well as being used to obtain the new: passport control and curfew orders under the 2008 Act.

The liability order under s 32M can be made if the Commission considers that a person has failed to pay child support maintenance (s 33M(1)). If a liability order is imposed where a calculation is under appeal then the Commission can only impose a liability order if the amounts involved in the order would not be affected were the appeal to succeed, or where to make an order, despite the appeal, ‘would nonetheless be fair in all the circumstances’(s 32M(2); and cf s 32A(3) above).

An appeal against a liability order is to the First-tier Tribunal (s 20(1)(ba) as amended by CMOPA 2008, Sch 7, para (3)). The only grounds are that the liable person has failed to pay ‘an amount of child support maintenance’ (any amount or only the amount in the order?) or that the amount claimed is more than accepted by the liable person. The liability order cannot then come into effect until the time for appeal (normally ‘one month’ from the sending out of the decision, in this case to make the order).

Enforcement following a liability order
Once a liability order has been made there are two different categories of action available to the Commission: to enforce by means which may directly raise the arrears (distress and application in the county court); and what may be termed penalty orders, applied for in the magistrates’ courts (committal, disqualification from driving, removal of a person’s passport and imposition of a curfew). The first four means of enforcement are already available, though in future they will derive from the new administrative liability order (subject to application to court in the case of committal and disqualification). This article will consider only the last two.

New provisions have been incorporated into CSA 1991 which will give the magistrates the power to impose 'disqualification for holding or obtaining travel authorisation (mostly a passport)' (ss 39B-39F) and curfew orders (ss 39H-39P). An array of new provisions and supplementary powers are set out by the new Act and added to the old, including what amounts to a power in the justices to cause a recalcitrant parent to be hauled up by his ankles to see if any money falls out of his pockets (ss 39D and 39L 'power to search': derived from Magistrates Courts Act 1980 s 80); and if it does it can be used to reduce the arrears debt (whether a person may keep enough for his lunch and bus fare home is not specified). It is not proposed here to consider further the fourteen new sections which empower the justices to impose a curfew or take away a passport. (Committal to prison is still dealt with in one section (s 40) albeit that it is more lengthy than before.)

In the case of each of the orders to be applied for before the magistrates the following must apply:

The new scheme extends considerably the power of the Commission to impose extensive and – in the case of the new deduction orders - much needed enforcement powers by administrative direction. These will only work if the administrative order appeals provisions are sufficiently wide to permit a fair appeal (the current appeals procedure for deduction from earnings orders are narrow to the point of absurdity, necessitating periodic recourse to the Administrative Court); if these appeals are then dealt with promptly to provide payment for the children concerned; and if the Secretary of State sets up, and the Commission uses, an effective system of debt management as provided for in ss 31-34 of CMOPA 2008 (CSA 1991 ss 41C-41E and 49A).

David Burrows
1 December 2008