Child Maintenance and Other Payments Act 2008 Explanatory Notes

Section 29: Commitment to prison

305.Section 29 inserts four new subsections (2A), (2B), (2C)and (2D) into section 40 of the Child Support Act 1991. These provisions will enable the Commission to make a separate application to a magistrates’ court to commit a non-resident parent to prison for failure to pay child support maintenance.

306.The new subsection (2A) enables the Commission to apply to a magistrates’ court for the issue of a warrant committing a non-resident parent to prison if:

  • it has sought to recover an amount 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 amount due remains unpaid; and

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

307.New subsection (2B) provides that the Commission is to be taken as having sought to recover an amount due through a charging order if an interim charging order is in place, whether or not further action has been taken to recover the amount.

308.New subsection (2C) requires the court to inquire (in the presence of the non-resident parent against whom the liability order has been made) about that person’s means, and whether they have wilfully refused or culpably neglected to pay the child support maintenance for which they are liable.

309.New subsection (2D) prevents a court, when considering an application for committal to prison, from questioning the liability order on which an application has been made, or the original maintenance calculation which is the basis of the liability order.

310.Subsection (2) of section 29 replaces subsection (10) of section 40, and provides that the court may order the search of a non-resident parent in respect of whom a commitment to prison order has been made. 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 order (the balance, if any, would be returned to the person searched). The court is prevented from taking money if it is satisfied that it does not belong to the person searched.

311.Subsection (3) inserts four new subsections (A1), (A2), (A3) and (A4) into section 40A of the Child Support Act 1991. These provisions will enable the Commission to make a separate application to the sheriff to commit a non-resident parent to prison if they fail to pay child support maintenance.

312.The new subsection (A1) enables the Commission to apply to the sheriff for the issue of a warrant committing a non-resident parent, against whom a liability order has been made, to prison if:

  • it has sought to recover the amount for which the liability order was made 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 amount due in respect of the order remains unpaid; and

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

313.New subsection (A2) 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.

314.New subsection (A3) requires the sheriff to inquire (in the presence of the non-resident parent against whom the liability order has been made) about that person’s means, and establish whether they have wilfully refused or culpably neglected to pay the child support maintenance for which they are liable.

315.New subsection (A4) prevents the sheriff, when considering an application for committal to prison, from questioning the liability order on which an application has been made, or the original maintenance calculation which is the basis of the liability order.

316.Subsection (4) of section 29 inserts four new subsections (7A), (7B), (7C) and (7D) into section 40A to provide that the sheriff may order the search of a non-resident parent in respect of whom a commitment to prison order has been made. During a search, any money found on the non-resident parent shall (unless the sheriff otherwise directs) be taken by the sheriff and put towards the amount specified in the order (the balance, if any, would be returned to the non-resident parent). The sheriff is prevented from taking money if he is satisfied that it does not belong to the non-resident parent.

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