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Point in time view as at 13/08/2010.

Changes to legislation:

The Child Support (Northern Ireland) Order 1991 is up to date with all changes known to be in force on or before 15 February 2025. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Statutory Instruments

1991 No. 2628 (N.I. 23)

The Child Support (Northern Ireland) Order 1991

19th November 1991

Modifications etc. (not altering text)

C1Order power to apply (with modifications) conferred (5.12.2008) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 3(4), 41(1); S.R. 2008/489, art. 2

C3Order: power to amend conferred by 1998 c. 47, s. 87(4)-(6)

C4Order: functions transf. by S.R. 1999/481, Sch. 6 Pt. II

IntroductoryN.I.

Title and commencementN.I.

1.—(1) This Order may be cited as the Child Support (Northern Ireland) Order 1991.

(2) This Order shall come into operation on such day or days as may be appointed by order made by the Lord Chancellor or the Head of the Department or by both of them acting jointly.

(3) An order under paragraph (2) may make such supplemental, incidental or transitional provision as appears to the person making the order to be necessary or expedient in connection with the provisions brought into operation by the order, including such adaptations or modifications of—

(a)the provisions so brought into operation;

(b)any provisions of this Order then in operation; or

(c)any provision of any other statutory provision,

as appear to him to be necessary or expedient.

(4) Different provision may be made by virtue of paragraph (3) with respect to different periods.

(5) Any provision made by virtue of paragraph (3) may, in particular, include provision for—

(a)the enforcement of a [F1maintenance calculation] (including the collection of sums payable under the [F2calculation]) as if the [F2calculation] were a court order of a prescribed kind;

(b)the registration of maintenance [F3calculations] with the appropriate court in connection with any provision of a kind mentioned in sub-paragraph (a);

(c)the variation, on application made to a court, of the provisions of a [F4maintenance calculation] relating to the method of making payments fixed by the [F5calculation] or the intervals at which such payments are to be made;

(d)a [F6maintenance calculation], or an order of a prescribed kind relating to one or more children, to be deemed, in prescribed circumstances, to have been validly made for all purposes or for such purposes as may be prescribed.

Subordinate Legislation Made

P1Art. 1(2) power partly exercised: 18.6.1992 appointed for specified provisions by S.R. 1992/278, art. 2, Sch.;

1.9.1992 appointed for specified provisions by S.R. 1992/347, art. 2;

5.4.1993 appointed for specified provisions by S.R. 1992/467, art. 2 (with transitional provisions in art. 3, Sch.)

InterpretationN.I.

2.—(1) The Interpretation Act (Northern Ireland) 1954M1 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

(2) In this Order—

  • “[F7non-resident parent]” has the meaning given in Article 4(2);

  • Definition rep. by S.I. 1998/1506 (N.I. 10)

  • [F8“appeal tribunal” means an appeal tribunal constituted under Chapter 1 of the Social Security (Northern Ireland) Order 1998;]

  • [F9“application for a [F10variation]” means an application under Article 28A [F11or 28G];]

  • F12...

  • “benefit Acts” means the[F9 Social Security Contributions and Benefits (Northern Ireland) Act 1992 and the Social Security Administration (Northern Ireland) Act 1992]

  • “child benefit” has the same meaning as in the Child Benefit (Northern Ireland) Order 1975M2;

  • Definitions rep. by S.I. 1998/1506 (N.I. 10)

  • “Child Support Commissioner” means a Child Support Commissioner for Northern Ireland appointed under section 23 of the Child Support Act 1991M3;

  • “child support maintenance” has the meaning given in Article 4(6);

  • [F13“curfew order” has the meaning given in Article 36G(1);]

  • Definition rep. by S.I. 1998/1506 (N.I. 10)

  • F14...

  • “deduction from earnings order” has the meaning given in Article 31(2);

  • [F15“default maintenance decision” has the meaning given in Article 14;]

  • “the Department” means the Department of Health and Social Services;

  • [F13“deposit taker” means a person who, in the course of a business, may lawfully accept deposits in the United Kingdom;]

  • F16...

  • “disability living allowance” has the same meaning as in the Social Security (Northern Ireland) Act 1975M4;

  • Definition rep. by 2002 c. 21

  • “income support” has the same meaning as in the benefit Acts;

  • [F17“income-based jobseeker's allowance” has the same meaning as in the Jobseekers (Northern Ireland) Order 1995;]

  • [F18“income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act (Northern Ireland) 2007 (employment and support allowance);]

  • “interim maintenance [F19decision]” has the meaning given in Article 14;

  • “liability order” has the meaning given in Article 33(2);

  • “maintenance agreement” has the meaning given in Article 11(1);

  • [F20“maintenance calculation” means a calculation of maintenance made under this Order and, except in prescribed circumstances, includes a default maintenance decision and an interim maintenance decision;]

  • “maintenance order” has the meaning given in Article 10(11);

  • F21...

  • “parent”, in relation to any child, means any person who is in law the mother or father of the child and, in the case of an illegitimate child, includes the father;

  • [F9“parent with care” means a person who is, in relation to a child, both a parent and a person with care;]

  • “parental responsibility” [F22 has the same meaning as in the Children (Northern Ireland) Order 1995];

  • “person with care” has the meaning given in Article 4(3);

  • “prescribed”, except in Article 12(5), means prescribed by regulations made by the Department;

  • “qualifying child” has the meaning given in Article 4(1);

  • “statutory provision” has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954M5.

  • [F23“voluntary payment” has the meaning given in Article 28J.]

[F24(3) The definition of “deposit-taker” in paragraph (2) is to be read with—

(a)section 22 of the Financial Services and Markets Act 2000;

(b)any relevant order under that section; and

(c)Schedule 2 to that Act.]

F10Word in art. 2(2) in definition of "application for a departure direction" substituted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 12(a); S.R. 2003/53, art. 3(1), Sch.

F11Words in art. 2(2) in definition of "application for a departure direction" inserted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 12(a); S.R. 2003/53, art. 3(1), Sch.

F15Art. 2(2): definition of "default maintenance decision" inserted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 12(c); S.R. 2003/53, art. 3(1), Sch.

F19Word in art. 2(2) in definition of "interim maintenance assessment" substituted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 12(d); S.R. 2003/53, art. 3(1), Sch.

F20Art. 2(2): definition of "maintenance calculation" substituted (3.3.2003 for specified purposes) for definition of "maintenance assessment" by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 12(e); S.R. 2003/53, art. 3(1), Sch.

Marginal Citations

Meaning of “child”N.I.

3.—(1) For the purposes of this Order a person is a child if—

(a)he is under the age of 16;

(b)he is under the age of 19 and receiving full-time education (which is not advanced education)—

(i)by attendance at a recognised educational establishment; or

(ii)elsewhere, if the education is recognised by the Department; or

(c)he does not fall within sub-paragraph (a)or (b) but—

(i)he is under the age of 18, and

(ii)prescribed conditions are satisfied with respect to him.

(2) A person is not a child for the purposes of this Order if he—

(a)is or has been married [F25 or a civil partner];

(b)has celebrated a marriage [F25, or been a party to a civil partnership,] which is void; or

(c)has celebrated a marriage in respect of which a decree of nullity has been granted [F25 or has been a party to a civil partnership in respect of which a nullity order has been made].

(3) In this Article—

  • “advanced education” means education of a prescribed description; and

  • “recognised educational establishment” means an establishment recognised by the Department for the purposes of this Article as being, or as comparable to, a university, college or school.

(4) Where a person has reached the age of 16, the Department may recognise education provided for him otherwise than at a recognised educational establishment only if the Department is satisfied that education was being so provided for him immediately before he reached the age of 16.

(5) The Department may provide that in prescribed circumstances education is or is not to be treated for the purposes of this Article as being full-time.

(6) In determining whether a person falls within paragraph (1)(b), no account shall be taken of such interruptions in his education as may be prescribed.

(7) The Department may by regulations provide that a person who ceases to fall within paragraph (1) shall be treated as continuing to fall within that paragraph for a prescribed period.

(8) No person shall be treated as continuing to fall within paragraph (1) by virtue of regulations made under paragraph (7) after the end of the week in which he reaches the age of 19.

Meaning of certain other terms used in this OrderN.I.

4.—(1) A child is a “qualifying child” if—

(a)one of his parents is, in relation to him, [F26a non-resident parent]; or

(b)both of his parents are, in relation to him, [F26non-resident parent]s.

(2) The parent of any child is [F26a] “[F26non-resident parent]”, in relation to him, if—

(a)that parent is not living in the same household with the child; and

(b)the child has his home with a person who is, in relation to him, a person with care.

(3) A person is a “person with care”, in relation to any child, if he is a person—

(a)with whom the child has his home;

(b)who usually provides day to day care for the child (whether exclusively or in conjunction with any other person); and

(c)who does not fall within a prescribed category of person.

(4) The Department shall not, under paragraph (3)(c), prescribe as a category—

(a)parents;

(b)guardians;

(c)persons [F27in whose favour residence orders under Article 8 of the Children (Northern Ireland) Order 1995 are in force].

(5) For the purposes of this Order there may be more than one person with care in relation to the same qualifying child.

(6) Periodical payments which are required to be paid in accordance with a [F28maintenance calculation] are referred to in this Order as “child support maintenance”.

(7) Expressions are defined in this Article only for the purposes of this Order.

Modifications etc. (not altering text)

The basic principlesN.I.

The duty to maintainN.I.

5.—(1) For the purposes of this Order, each parent of a qualifying child is responsible for maintaining him.

(2) For the purposes of this Order, [F29a non-resident parent] shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Order.

(3) Where a [F30maintenance calculation] made under this Order requires the making of periodical payments, it shall be the duty of the [F31non-resident parent] with respect to whom the [F32calculation] was made to make those payments.

Welfare of children: the general principleN.I.

6.  Where in any case which falls to be dealt with under this Order, the Department F33. . . is considering the exercise of any discretionary power conferred by this Order, the Department F33. . . shall have regard to the welfare of any child likely to be affected by its F33. . . decision.

Child support maintenanceN.I.

7.—(1) A person who is, in relation to any qualifying child or any qualifying children, either the person with care or the [F34non-resident parent] may apply to the Department for a [F35maintenance calculation] to be made under this Order with respect to that child, or any of those children.

(2) Where a [F36maintenance calculation] has been made in response to an application under this Article the Department may, if the persons with care or [F37non-resident parent] with respect to whom the [F38calculation] was made applies to it under this paragraph, arrange for—

(a)the collection of the child support maintenance payable in accordance with the [F39calculation];

(b)the enforcement of the obligation to pay child support maintenance in accordance with the [F40calculation].

(3) Where an application under paragraph (2) for the enforcement of the obligation mentioned in paragraph (2)(b) authorises the Department to take steps to enforce that obligation whenever it considers it necessary to do so, the Department may act accordingly.

(4) A person who applies to the Department under this Article shall, so far as that person reasonably can, comply with such regulations as may be made by the Department with a view to the Department F41. . . being provided with the information which is required to enable—

(a)the [F42non-resident parent] to be[F43 identified or] traced (where that is necessary);

(b)the amount of child support maintenance payable by the [F44non-resident parent] to be [F45calculated]; and

(c)that amount to be recovered from the [F46non-resident parent].

(5) Any person who has applied to the Department under this Article may at any time request it to cease acting under this Article.

(6) It shall be the duty of the Department to comply with any request made under paragraph (5) (but subject to any regulations made under paragraph (8)).

(7) The obligation to provide information which is imposed by paragraph (4)—

(a)shall not apply in such circumstances as may be prescribed; and

(b)may, in such circumstances as may be prescribed, be waived by the Department.

(8) The Department may by regulations make such incidental, supplemental or transitional provision as it thinks appropriate with respect to cases in which it is requested to cease to act under this Article.

F47(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F48(10) No application may be made at any time under this Article with respect to a qualifying child or any qualifying children if—

(a)there is in force a written maintenance agreement made before 5th April 1993, or a maintenance order [F49made before a prescribed date], in respect of that child or those children and the person who is, at that time, the [F50non-resident parent]; or

[F51(aa)a maintenance order made on or after the date prescribed for the purposes of sub-paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with and including the date on which it was made;]F52...

F52(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F53(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F52Art. 7(10)(b) and word repealed (14.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), s. 41(1), Sch. 5 (with s. 37); S.R. 2008/291, art. 2(2)(c) (with art. 2(3)(4)); S.R. 2008/399, art. 2(2)(d)(i) (with art. 3)

Child support maintenance: supplemental provisionsN.I.

8.—(1) Where—

(a)there is more than one person with care of a qualifying child; and

(b)one or more, but not all, of them have parental responsibility for the child;

no application may be made for a [F54maintenance calculation] with respect to the child by any of those persons who do not have parental responsibility for the child.

(2) Where more than one application for a [F55maintenance calculation] is made with respect to the child concerned, only one of them may be proceeded with.

(3) The Department may by regulations make provision as to which of two or more applications for a [F56maintenance calculation] with respect to the same child is to be proceeded with.

Applications by those claiming or receiving benefitN.I.

F579.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F57Art. 9 repealed (14.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 7(a), 41(1), Sch. 5 (with s. 37); S.R. 2008/291, art. 2(2)(a)(c) (with art. 2(3)(4)); S.R. 2008/399, art. 2(2)(a) (with art. 3)

Role of the courts with respect to maintenance for childrenN.I.

10.—(1) This paragraph applies in any case where [F58the Department] would have jurisdiction to make a [F59maintenance calculation] with respect to a qualifying child and [F60a non-resident parent] of his on an application duly made F61... by a person entitled to apply for such [F62a calculation] with respect to that child.

(2) Paragraph (1) applies even though the circumstances of the case are such that [F58the Department] would not make [F63a calculation] if it were applied for.

(3) [F64Except as provided in paragraph (3A),] in any case where paragraph (1) applies, no court shall exercise any power which it would otherwise have to make, vary or revive any maintenance order in relation to the child and [F65non-resident parent] concerned.

[F66(3A) Unless a maintenance calculation has been made with respect to the child concerned, paragraph (3) does not prevent a court from varying a maintenance order in relation to that child and the non-resident parent concerned—

(a)if the maintenance order was made on or after the date prescribed for the purposes of Article 7(10)(a); or

(b)where the order was made before then, in any case in which Article 7(10) prevents the making of an application for a maintenance calculation with respect to or by that child.]

(4) Paragraph (3) does not prevent a court from revoking a maintenance order.

(5) The Lord Chancellor may [F67, with the concurrence of the Lord Chief Justice,] by order provide that, in such circumstances as may be specified by the order, this Article shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a)a written agreement (whether or not enforceable) provides for the making, or securing, by [F68a non-resident parent] of the child of periodical payments to or for the benefit of the child; and

(b)the maintenance order which the court makes is, in all material respects, in the same terms as that agreement.

[F69(5A) The Lord Chief Justice may nominate any of the following to exercise his functions under paragraph (5)—

(a)the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b)a Lord Justice of Appeal (as defined in section 88 of that Act).]

(6) This Article shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a)a [F70maintenance calculation] is in force with respect to the child;

[F71(b)the non-resident parent’s net weekly income exceeds the figure referred to in paragraph 10(3) of Schedule 1 (as it has effect from time to time pursuant to regulations made under paragraph 10A(1)(b)); and]

(c)the court is satisfied that the circumstances of the case make it appropriate for the [F72non-resident parent] to make or secure the making of periodical payments under a maintenance order in addition to the child support maintenance payable by him in accordance with the [F73maintenance calculation].

(7) This Article shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a)the child is, will be or (if the order were to be made) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation (whether or not while in gainful employment); and

(b)the order is made solely for the purposes of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of the expenses incurred in connection with the provision of the instruction or training.

(8) This Article shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

(a)a disability living allowance is paid to or in respect of him; or

(b)no such allowance is paid but he is disabled,

and the order is made solely for the purpose of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of any expenses attributable to the child's disability.

(9) For the purposes of paragraph (8), a child is disabled if he is blind, deaf or dumb or is substantially and permanently handicapped by illness, injury, mental disorder or congenital deformity or such other disability as may be prescribed.

(10) This Article shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if the order is made against a person with care of the child.

(11) In this Order “maintenance order”, in relation to any child, means an order which requires the making or securing of periodical payments to or for the benefit of the child and which is made under—

Sub-para. (a) rep. by 1995 NI 2

(b)Part III of the Matrimonial Causes (Northern Ireland) Order 1978M6;

(c)the Domestic Proceedings (Northern Ireland) Order 1980M7;

(d)Part IV of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989M8; F74. . .

[F75(da)Schedule 15, 16 or 17 to the Civil Partnership Act 2004; or]

[F74(dd)Schedule 1 to the Children (Northern Ireland) Order 1995; F76. . . ]

(e)any other prescribed statutory provision,

and includes any order varying or reviving such an order.

Marginal Citations

Agreements about maintenanceN.I.

11.—(1) In this Article “maintenance agreement” means any agreement for the making, or for securing the making, of periodical payments by way of maintenance to or for the benefit of any child.

(2) Nothing in this Order shall be taken to prevent any person from entering into a maintenance agreement.

(3) [F77Subject to Article 7(10)(a)] the existence of a maintenance agreement shall not prevent any party to the agreement, or any other person, from applying for a [F78maintenance calculation] with respect to any child to or for whose benefit periodical payments are to be made or secured under the agreement.

(4) Where any agreement contains a provision which purports to restrict the right of any person to apply for a [F78maintenance calculation], that provision shall be void.

(5) Where Article 10 would prevent any court from making a maintenance order in relation to a child and [F79a non-resident parent] of his, no court shall exercise any power that it has to vary any agreement so as—

(a)to insert a provision requiring that [F79non-resident parent] to make or secure the making of periodical payments by way of maintenance to or for the benefit of that child; or

(b)to increase the amount payable under such a provision.

[F77(6) In any case in which Article 7(10) prevents the making of an application for a [F78maintenance calculation], F80... paragraph (5) shall have effect with the omission of sub-paragraph (b).]

Relationship between maintenance [F81calculations] and certain court orders and related mattersN.I.

12.—(1) Where an order of a kind prescribed for the purposes of this paragraph is in force with respect to any qualifying child with respect to whom a [F82maintenance calculation] is made, the order—

(a)shall, so far as it relates to the making or securing of periodical payments, cease to have effect to such extent as may be determined in accordance with regulations made by the Department; or

(b)where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.

(2) Where an agreement of a kind prescribed for the purposes of this paragraph is in force with respect to any qualifying child with respect to whom a [F83maintenance calculation] is made, the agreement—

(a)shall, so far as it relates to the making or securing of periodical payments, be unenforceable to such extent as may be determined in accordance with regulations made by the Department; or

(b)where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.

(3) Any regulations under this Article may, in particular, make such provision with respect to—

(a)any case where any person with respect to whom an order or agreement of a kind prescribed for the purposes of paragraph (1) or (2) has effect applies to the prescribed court, before the end of the prescribed period, for the order or agreement to be varied in the light of the [F84maintenance calculation] and of the provisions of this Order;

(b)the recovery of any arrears under the order or agreement which fell due before the coming into force of the [F85maintenance calculation],

as the Department considers appropriate and may provide that, in prescribed circumstances, an application to any court which is made with respect to an order of a prescribed kind relating to the making or securing of periodical payments to or for the benefit of a child shall be treated by the court as an application for the order to be revoked.

(4) The Department may by regulations make provision for—

(a)notification to be given by the [F86 the Department] to the prescribed person in any case where[F86it] considers that the making of a [F87maintenance calculation] has affected, or is likely to affect, any order of a kind prescribed for the purposes of this paragraph;

(b)notification to be given by the prescribed person to the Department in any case where a court makes an order which it considers has affected, or is likely to affect, a [F88maintenance calculation].

(5) Magistrates' courts rules may be made requiring any person who, in prescribed circumstances, makes an application to a court of summary jurisdiction for a maintenance order to furnish the court with a statement in a prescribed form, and signed by [F86an officer of the Department], as to whether or not, at the time when the statement is made, there is a [F89maintenance calculation] in force with respect to that person or the child concerned.

(6) In paragraph (5)—

  • “maintenance order” means an order of a prescribed kind for the making or securing of periodical payments to or for the benefit of a child; and

  • “prescribed” means prescribed by the rules.

Maintenance [F90calculations]N.I.

[F91Maintenance calculationsN.I.

13.—(1) An application for a maintenance calculation made to the Department shall be dealt with by it in accordance with the provision made by or under this Order.

(2) The Department shall (unless it decides not to make a maintenance calculation in response to the application, or makes a decision under Article 14) determine the application by making a decision under this Article about whether any child support maintenance is payable and, if so, how much.

F92(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F92(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F92(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The amount of child support maintenance to be fixed by a maintenance calculation shall be determined in accordance with Part I of Schedule 1 unless an application for a variation has been made and agreed.

(7) If the Department has agreed to a variation, the amount of child support maintenance to be fixed shall be determined on the basis it determines under Article 28F(4).

(8) Part II of Schedule 1 makes further provision with respect to maintenance calculations.]

Modifications etc. (not altering text)

C6Art. 13 (as originally enacted) amended (14.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), s. 41(1), Sch. 4 para. 1(29)(a) (with s. 37); S.R. 2008/291, art. 2(2)(b) (with art. 2(3)(4)); S.R. 2008/419, art. 2

[F93Default and interim maintenance decisionsN.I.

14.—(1) Where the Department—

(a)is required to make a maintenance calculation; or

(b)is proposing to make a decision under Article 18 or 19,

and it appears to the Department that it does not have sufficient information to enable it to do so, it may make a default maintenance decision.

(2) Where an application for a variation has been made under Article 28A(1) in connection with an application for a maintenance calculation F94..., the Department may make an interim maintenance decision.

(3) The amount of child support maintenance fixed by an interim maintenance decision shall be determined in accordance with Part I of Schedule 1.

(4) The Department may by regulations make provision as to default and interim maintenance decisions.

(5) The regulations may, in particular, make provision as to—

(a)the procedure to be followed in making a default or an interim maintenance decision; and

(b)a default rate of child support maintenance to apply where a default maintenance decision is made.]

Child support officersN.I.

Art. 15 rep. by S.I. 1998/1506 (N.I. 10)

InformationN.I.

Information required by the DepartmentN.I.

16.—(1) The Department may make regulations requiring any information or evidence needed for the determination of any application [F95made] F96... under this Order, or any question arising in connection with such an application, F96... [F97, or needed for the making of any decision or in connection with the imposition of any condition or requirement under this Order,] or needed in connection with the collection or enforcement of child support or other maintenance under this Order, to be furnished—

(a)by such persons as may be determined in accordance with regulations made by the Department; and

(b)in accordance with the regulations.

[F98(1A) Regulations under paragraph (1) may make provision for notifying any person who is required to furnish any information or evidence under the regulations of the possible consequences of failing to do so.]

Paras. (2), (2A) rep. by S.I. 1995/2702 (N.I. 13)

(3) The Department may by regulations make provision authorising the disclosure by it F99. . . , in such circumstances as may be prescribed, of such information held by [F99it] for purposes of this Order as may be prescribed.

Para. (4) rep. by S.I. 1995/2702 (N.I. 13)

F97Words in art. 16(1) inserted (3.3.2003 for specified purposes, 3.10.2008 in so far as not already in operation) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 12, 68(1)(2) (with s. 66(6)); S.R. 2003/53, art. 3, Sch.; S.R. 2008/402, art. 2(a)

[F100Information - offencesN.I.

16A.—(1) This Article applies to—

(a)persons who are required to comply with regulations under Article 7(4); and

(b)persons specified in regulations under Article 16(1)(a).

(2) Such a person is guilty of an offence if, pursuant to a request for information under or by virtue of those regulations—

(a)he makes a statement or representation which he knows to be false; or

(b)he provides, or knowingly causes or knowingly allows to be provided, a document or other information which he knows to be false in a material particular.

(3) Such a person is guilty of an offence if, following such a request, he fails to comply with it.

[F101(3A) In the case of regulations under Article 16 which require a person liable to make payments of child support maintenance to notify a change of address, a person who fails to comply with the requirement is guilty of an offence.]

(4) It is a defence for a person charged with an offence under paragraph (3) [F102or (3A)] to prove that he had a reasonable excuse for failing to comply.

(5) A person guilty of an offence under this Article is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

[F103(6) Notwithstanding anything in Article 19(1)(a) of the Magistrates' Courts (Northern Ireland) Order 1981 (limitation of time for taking proceedings), summary proceedings for an offence under paragraph (2) may be instituted at any time within the period of 12 months beginning with the commission of the offence.]]

F101Art. 16A(3A) inserted (29.9.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 27(1), 41(1); S.R. 2008/399, art. 2(1)(b)

F102Words in art. 16A(4) inserted (29.9.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 27(2), 41(1); S.R. 2008/399, art. 2(1)(b)

Powers of inspectorsN.I.

17.—[F104(1) The Department may appoint, on such terms as it thinks fit, persons to act as inspectors under this Article.

(2) The function of inspectors shall be to acquire information which the Department needs for any of the purposes of this Order.

(3) Every inspector shall be given a certificate of his appointment.

(4) An inspector shall have power, at any reasonable time and either alone or accompanied by such other persons as he thinks fit, to enter any premises which—

(a)are liable to inspection under this Article; and

(b)are premises to which it is reasonable for him to require entry in order that he may exercise his functions under this Article,

and may there make such examination and inquiry as he considers appropriate.

(4A) Premises liable to inspection under this Article are those which are not used wholly as a dwelling house and which the inspector has reasonable grounds for suspecting are—

(a)premises at which a non-resident parent is or has been employed;

(b)premises at which a non-resident parent carries out, or has carried out, a trade, profession, vocation or business;

(c)premises at which there is information held by a person ( “A”) whom the inspector has reasonable grounds for suspecting has information about a non-resident parent acquired in the course of A's own trade, profession, vocation or business.]

(5) An inspector exercising his powers may question any person aged 18 or over whom he finds on the premises.

(6) If required to do so by an inspector exercising his powers,[F104 any such person] shall furnish to the inspector all such information and documents as the inspector may reasonably require.

(7) No person shall be required under this Article to answer any question or to give any evidence tending to incriminate himself or, in the case of a person who is married [F105 or is a civil partner], his or her spouse [F105 or civil partner].

(8) On applying for admission to any premises in the exercise of his powers, an inspector shall, if so required, produce his certificate.

(9) If any person—

(a)intentionally delays or obstructs any inspector exercising his powers; or

(b)without reasonable excuse, refuses or neglects to answer any question or furnish any information or to produce any document when required to do so under this Article,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(10) In this Article—

  • “certificate” means a certificate of appointment issued under this Article;

  • “inspector” means an inspector appointed under this Article;

  • “powers” means powers conferred by this Article; F104. . .

  • Definition rep. by 2000 c. 4 (NI)

[F104(11) In this Article, “premises” includes—

(a)moveable structures and vehicles, vessels, aircraft and hovercraft;

(b)installations that are offshore installations for the purposes of the Mineral Workings (Offshore Installations) Act 1971; and

(c)places of all other descriptions whether or not occupied as land or otherwise,

and references in this Article to the occupier of premises shall be construed, in relation to premises that are not occupied as land, as references to any person for the time being present at the place in question.]

Reviews and appealsN.I.

[F106Revision of decisionsN.I.

18.—(1) Any decision [F107to which paragraph (1A) applies] may be revised by the Department—

(a)either within the prescribed period or in prescribed cases or circumstances; and

(b)either on an application made for the purpose or on the Department's own initiative,

and regulations may prescribe the procedure by which a decision of the Department may be so revised.

[F108(1A) This paragraph applies to—

(a)a decision of the Department under Article 13, 14 or 19;

F109(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)a decision of an appeal tribunal on a referral under Article 28D(1)(b).

(1B) Where the Department revises a decision under Article 14(1)—

(a)it may (if appropriate) do so as if it were revising a decision under Article 13; and

(b)if it does that, its decision, as revised, shall be treated as a decision under Article 13 instead of Article 14(1) (and, in particular, shall be so treated for the purposes of an appeal against it under Article 22).]

(2) In making a decision under paragraph (1), the Department need not consider any issue that is not raised by the application or, as the case may be, did not cause the Department to act on its own initiative.

(3) Subject to paragraphs (4) and (5) and Article 28ZC, a revision under this Article shall take effect as from the date on which the original decision took (or was to take) effect.

(4) Regulations may provide that, in prescribed cases or circumstances, a revision under this Article shall take effect as from such other date as may be prescribed.

(5) Where a decision is revised under this Article, for the purpose of any rule as to the time allowed for bringing an appeal, the decision shall be regarded as made on the date on which it is so revised.

(6) Except in prescribed circumstances, an appeal against a decision of the Department shall lapse if the decision is revised under this Article before the appeal is determined.]

F106Art. 18 substituted by S.I. 1998/1506 (N.I. 10), art. 40; S.R. 1998/395, art. 2 (subject to saving in art. 3(3)) (which art. 3(3) is revoked by 2000 c. 4 (N.I.), s. 23)

Modifications etc. (not altering text)

C7Art. 18 applied by The Social Security and Child Support (Decisions and Appeals) Regulations (S.R. 1999/162), reg. 3A(7)(8) (as added (27.10.2008) by S.R. 2008/409, regs. 1, 4)

[F110Decisions superseding earlier decisionsN.I.

19.—(1) Subject to paragraph (2), the following, namely—

(a)any decision of the Department under Article 13 or 14 or this Article, whether as originally made or as revised under Article 18;

(b)any decision of an appeal tribunal under Article 22; F111. . .

F112(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F113(d)any decision of an appeal tribunal on a referral under Article 28D(1)(b); and

(e)any decision of a Child Support Commissioner on an appeal from such a decision as is mentioned in sub-paragraph (b) or (d),]

may be superseded by a decision made by the Department, either on an application made for the purpose or on the Department's own initiative.

(2) In making a decision under paragraph (1), the Department need not consider any issue that is not raised by the application or, as the case may be, did not cause the Department to act on its own initiative.

(3) Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this Article.

[F114(4) Subject to paragraph (5) and Article 28ZC, a decision under this Article shall take effect as from the beginning of the maintenance period in which it is made or, where applicable, the beginning of the maintenance period in which the application was made.

(4A) In paragraph (4), a maintenance period is (except where a different meaning is prescribed for prescribed cases) a period of seven days, the first one beginning on and including the effective date of the first decision made by the Department under Article 13 or (if earlier) the Department's first default or interim maintenance decision (under Article 14) in relation to the non-resident parent in question, and each subsequent one beginning on and including the day after the last day of the previous one.]

(5) Regulations may provide that, in prescribed cases or circumstances, a decision under this Article shall take effect as from such other date as may be prescribed.]

F110Art. 19 substituted for Arts. 19-21 by S.I. 1998/1506 (N.I. 10)

Reviews of decisions of child support officersN.I.

F11020.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F110Art. 19 substituted for Arts. 19-21 by S.I. 1998/1506 (N.I. 10)

Reviews at instigation of child support officersN.I.

F11021.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F110Art. 19 substituted for Arts. 19-21 by S.I. 1998/1506 (N.I. 10)

[F115[F116Appeals to appeal tribunalsN.I.

22.—(1) A qualifying person has a right of appeal to an appeal tribunal against—

(a)a decision of the Department under Article 13, 14 or 19 (whether as originally made or as revised under Article 18);

(b)a decision of the Department not to make a maintenance calculation under Article 13 or not to supersede a decision under Article 19;

F117(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)the imposition (by virtue of Article 38A) of a requirement to make penalty payments, or their amount;

F118(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In paragraph (1), qualifying person means—

(a)in relation to sub-paragraphs (a) and (b), the person with care, or non-resident parent, with respect to whom the Department made the decision;

F119(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)in relation to sub-paragraph (d), the parent who has been required to make penalty payments; and

F120(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A person with a right of appeal under this Article shall be given such notice as may be prescribed of—

(a)that right; and

(b)the relevant decision, or the imposition of the requirement.

(4) Regulations may make—

(a)provision as to the manner in which, and the time within which, appeals are to be brought; and

(b)such provision with respect to proceedings before appeal tribunals as the Department considers appropriate.

(5) The regulations may in particular make any provision of a kind mentioned in Schedule 4 to the Social Security (Northern Ireland) Order 1998.

F121(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) In deciding an appeal under this Article, an appeal tribunal—

(a)need not consider any issue that is not raised by the appeal; and

(b)shall not take into account any circumstances not obtaining at the time when the Department made the decision or imposed the requirement.

(8) If an appeal under this Article is allowed, the appeal tribunal may—

(a)itself make such decision as it considers appropriate; or

(b)remit the case to the Department, together with such directions (if any) as it considers appropriate.]]

Modifications etc. (not altering text)

Lapse of appealsN.I.

F122F12322A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F123Art. 22 substituted for Arts. 22-23 by S.I. 1998/1506 (N.I. 10)

Child support appeal tribunalsN.I.

F12323.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F123Art. 22 substituted for Arts. 22-23 by S.I. 1998/1506 (N.I. 10)

Matters concerning Child Support CommissionersN.I.

24.  Schedule 4 shall have effect with respect to certain matters concerning Child Support Commissioners.

[F124Redetermination of appealsN.I.

24A.—(1) This Article applies where an application is made to a person under Article 25(6)(a) for leave to appeal from a decision of an appeal tribunal.

(2) If the person who constituted, or was the chairman of, the appeal tribunal considers that the decision was erroneous in point of law, he may set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal.

(3) If each of the principal parties to the case expresses the view that the decision was erroneous in point of law, the person shall set aside the decision and refer the case for determination by a differently constituted tribunal.

(4) The “principal parties” are—

(a)the Department; and

(b)those who are qualifying persons for the purposes of Article 22(2) in relation to the decision in question.]

Appeal to Child Support CommissionerN.I.

25.—(1) Any person who is aggrieved by a decision of[F125 an appeal tribunal, and the Department], may appeal to a Child Support Commissioner on a question of law.

Para. (1A) rep. by S.I. 1998/1506 (N.I. 10)

(2) Where, on an appeal under this Article, a Child Support Commissioner holds that the decision appealed against was wrong in law he shall set it aside.

(3) Where a decision is set aside under paragraph (2), the Child Support Commissioner may—

(a)if he can do so without making fresh or further findings of fact, give the decision which he considers should have been given by[F125 the appeal tribunal];

(b)if he considers it expedient, make such findings and give such decision as he considers appropriate in the light of those findings; or

[F126(c)on an appeal by the Department, refer the case to[F125 an appeal tribunal] with directions for its determination; or

(d)on any other appeal, refer the case to[F125 the Department] or, if he considers it appropriate, to[F125 an appeal tribunal] with directions for its determination.]

[F125(4) The reference under paragraph (3) to the Department shall, subject to any direction of the Child Support Commissioner, be to an officer of the Department, or to a person providing it with services, who has taken no part in the decision originally appealed against.]

(5) On a reference under paragraph (3) to[F125 an appeal tribunal], the tribunal shall, subject to any direction of the Child Support Commissioner, consist of persons who were not members of the tribunal which gave the decision which has been appealed against.

(6) No appeal lies under this Article without the leave—

(a)of the person[F125 who constituted, or was the chairman, of the appeal tribunal] when the decision appealed against was given or of[F125 such other person] as may be determined in accordance with regulations made by the Lord Chancellor; or

(b)subject to and in accordance with regulations so made, of a Child Support Commissioner.

(7) The Lord Chancellor may by regulations make provision as to the manner in which and the time within which appeals under this Article are to be brought and applications for leave under this Article are to be made.

(8) Where a question which would otherwise fall to be determined by[F125 the Department] first arises in the course of an appeal to a Child Support Commissioner, he may, if he thinks fit, determine it even though it has not been considered by[F125 the Department].

Appeal from Child Support Commissioner on question of lawN.I.

26.—(1) An appeal on a question of law shall lie to the Court of Appeal from any decision of a Child Support Commissioner.

(2) No such appeal may be brought except—

(a)with leave of the Child Support Commissioner who gave the decision or, where regulations made by the Lord Chancellor so provide, of a Child Support Commissioner selected in accordance with the regulations; or

(b)if the Child Support Commissioner refuses leave, with the leave of the Court of Appeal.

(3) An application for leave to appeal under this Article against a decision of a Child Support Commissioner ( “the appeal decision”) may only be made by—

(a)a person who was a party to the proceedings in which the original decision, or appeal decision, was given;

(b)the Department; or

(c)any other person who is authorised to do so by regulations made by the Lord Chancellor.

(4) In this Article “original decision” means the decision to which the appeal decision in question relates.

(5) The Lord Chancellor may by regulations make provision with respect to—

(a)the manner in which and the time within which applications must be made to a Child Support Commissioner for leave under this Article; and

(b)the procedure for dealing with such applications.

Disputes about parentageN.I.

27.—(1) Where a person who is alleged to be a parent of the child with respect to whom an application for a [F127maintenance calculation] has been made F128... (“the alleged parent”) denies that he is one of the child's parents,[F129 the Department] shall not make a [F127maintenance calculation] on the assumption that the alleged parent is one of the child's parents unless the case falls within one of those set out in paragraph (2).

(2) The Cases are—

[F130CASE A1

Where—

(a)the child is habitually resident in Northern Ireland;

(b)the Department is satisfied that the alleged parent was married to the child's mother at some time in the period beginning with the conception and ending with the birth of the child; and

(c)the child has not been adopted.

CASE A2

Where—

(a)the child is habitually resident in Northern Ireland;

(b)the alleged parent has been registered as the father of the child under Article 14 or 18(1)(b)(ii) of the Births and Deaths Registration (Northern Ireland) Order 1976, or under section 10 or 10A of the Births and Deaths Registration Act 1953, or in any register kept under section 13 or 44 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and

(c)the child has not subsequently been adopted.

CASE A3

Where the result of a scientific test (within the meaning of Article 27A) taken by the alleged parent would be relevant to determining the child's parentage, and the alleged parent—

(a)refuses to take such a test; or

(b)has submitted to such a test, and it shows that there is no reasonable doubt that the alleged parent is a parent of the child.]

CASE A

Where the alleged parent is a parent of the child in question by virtue of having adopted him.

[F131CASE B

Where the alleged parent is a parent of the child in question by virtue of an order under section 30 of the Human Fertilisation and Embryology Act 1990 or section 54 of the Human Fertilisation and Embryology Act 2008 (parental orders).]

[F131CASE B1

Where the Department is satisfied that the alleged parent is a parent of the child in question by virtue of section 27 or 28 of the Human Fertilisation and Embryology Act 1990 or any of sections 33 to 46 of the Human Fertilisation and Embryology Act 2008 (which relate to children resulting from assisted reproduction).]

CASE C

Where—

(a)either—

(i)a declaration that the alleged parent is a parent of the child in question (or a declaration which has that effect) is in force under [F132Article [F13331B or] 32 of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 or] section 56 of the Family Law Act 1986F134 (declarations of parentage); or

(ii)a declarator by a court in Scotland that the alleged parent is a parent of the child in question (or a declarator which has that effect) is in force; and

(b)the child has not subsequently been adopted.

CASE D

Where—

(a)a declaration to the effect that the alleged parent is one of the parents of the child in question has been made under Article 28; and

(b)the child has not subsequently been adopted.

CASE E

Where—

(a)the alleged parent has been found or adjudged to be the father of the child in question—

(i)in affiliation proceedings before any court in the United Kingdom; or

(ii)in proceedings before any court in England and Wales [F135or Northern Ireland] which are relevant proceedings for the purposes of section 12 of the Civil Evidence Act 1968F136 [F137or section 8 of the Civil Evidence Act (Northern Ireland) 1971],

(whether or not he offered any defence to the allegation of paternity) and that finding or adjudication still subsists; and

(b)the child has not subsequently been adopted.

(3) In this Article—

  • “adopted” means adopted within the meaning of Part V of the Adoption (Northern Ireland) Order 1987F138; and

  • “affiliation proceedings”, in relation to Scotland, means any action of affiliation and aliment.

F131Words in art. 27 substituted (6.4.2009 for specified purposes, 6.4.2010 in so far as not already in operation) by Human Fertilisation and Embryology Act 2008 (c. 22), s. 68(2), Sch. 6 para. 69; S.I. 2009/479, art. 6(1)(d) (with art. 7, Sch.); S.I. 2010/987, art. 2(g)

[F139Recovery of fees for scientific testsN.I.

27A.—(1) This Article applies in any case where—

(a)an application for a [F140maintenance calculation] has been made F141... or a [F140maintenance calculation] is in force;

(b)scientific tests have been carried out (otherwise than under a direction) in relation to bodily samples obtained from a person who is alleged to be a parent of a child with respect to whom the application or [F142calculation] is made F143...;

(c)the results of the tests do not exclude the alleged parent from being one of the child's parents; and

(d)one of the conditions set out in paragraph (2) is satisfied.

(2) The conditions are that—

(a)the alleged parent does not deny that he is one of the child's parents; or

(b)in proceedings under [F144Article 31B of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989], a court has made a declaration that the alleged parent is a parent of the child in question.

(3) In any case to which this Article applies, any fee paid by the Department in connection with scientific tests may be recovered by it from the alleged parent as a debt due to the Crown.

(4) In this Article—

  • “bodily sample” means a sample of bodily fluid or bodily tissue taken for the purpose of scientific tests;

  • “direction” means a direction given by a court under Article 8 of the Family Law Reform (Northern Ireland) Order 1977F145 (tests to determine paternity); and

  • “scientific tests” means scientific tests made with the object of ascertaining the inheritable characteristics of bodily fluids or bodily tissue.

(5) Any sum recovered by the Department under this Article shall be paid by the Department into the Consolidated Fund.]

[F146Applications for declaration of parentage under Matrimonial and Family Proceedings (Northern Ireland) Order 1989N.I.

28.—(1) This Article applies where—

(a)an application for a maintenance calculation has been made F147... , or a maintenance calculation is in force, with respect to a person ( “the alleged parent”) who denies that he is a parent of a child with respect to whom the application or calculation was made F147...;

(b)the Department is not satisfied that the case falls within one of those set out in Article 27(2); and

(c)the Department or the person with care makes an application for a declaration under Article 31B of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 as to whether or not the alleged parent is one of the child's parents.

(2) Where this Article applies—

(a)if it is the person with care who makes the application, that person shall be treated as having a sufficient personal interest for the purposes of paragraph (3) of that Article; and

(b)if it is the Department which makes the application, that paragraph shall not apply.]

[F148Decisions and appeals dependent on other cases]N.I.

[F149Decisions involving issues that arise on appeal in other casesN.I.

28ZA.—(1) This Article applies where—

(a)a decision by the Department falls to be made under Article 13, 14, 18 or 19 F150...; and

(b)an appeal is pending against a decision given in relation to a different [F151matter] by a Child Support Commissioner or a court.

(2) If the Department considers it possible that the result of the appeal will be such that, if it were already determined, it would affect the decision in some way—

(a)the Department need not, except in such cases or circumstances as may be prescribed, make the decision while the appeal is pending;

(b)the Department may, in such cases or circumstances as may be prescribed, make the decision on such basis as may be prescribed.

(3) Where the Department acts in accordance with paragraph (2)(b), following the determination of the appeal it shall, if appropriate, revise its decision (under Article 18) in accordance with that determination.

(4) For the purposes of this Article, an appeal against a decision is pending if—

(a)an appeal against the decision has been brought but not determined;

(b)an application for leave to appeal against the decision has been made but not determined; or

(c)in such circumstances as may be prescribed, an appeal against the decision has not been brought (or, as the case may be, an application for leave to appeal against the decision has not been made) but the time for doing so has not yet expired.

(5) In sub-paragraphs (a), (b) and (c) of paragraph (4), any reference to an appeal, or to an application for leave to appeal, against a decision includes a reference to an application for, or for leave to apply for, judicial review of the decision under section 18 of the Judicature (Northern Ireland) Act 1978.]

[F152Appeals involving issues that arise on appeal in other casesN.I.

28ZB.—(1) This Article applies where—

[F153(a)an appeal (“appeal A”) in relation to a decision or the imposition of a requirement falling within Article 22(1) is made to an appeal tribunal, or from an appeal tribunal to a Child Support Commissioner;]

(b)an appeal ( “appeal B”) is pending against a decision given in a different case by a Child Support Commissioner or a court.

(2) If the Department considers it possible that the result of appeal B will be such that, if it were already determined, it would affect the determination of appeal A, the Department may serve notice requiring the tribunal or Child Support Commissioner—

(a)not to determine appeal A but to refer it to the Department; or

(b)to deal with the appeal in accordance with paragraph (4).

(3) Where appeal A is referred to the Department under paragraph (2)(a), following the determination of appeal B and in accordance with that determination, the Department shall if appropriate—

(a)in a case where appeal A has not been determined by the tribunal, revise (under Article 18) its decision which gave rise to that appeal; or

(b)in a case where appeal A has been determined by the tribunal, make a decision (under Article 19) superseding the tribunal's decision.

(4) Where appeal A is to be dealt with in accordance with this paragraph, the appeal tribunal or Child Support Commissioner shall either—

(a)stay appeal A until appeal B is determined; or

(b)if the tribunal or Child Support Commissioner considers it to be in the interests of the appellant to do so, determine appeal A as if—

(i)appeal B had already been determined; and

(ii)the issues arising on appeal B had been decided in the way that was most unfavourable to the appellant.

In this paragraph “the appellant” means the person who appealed or, as the case may be, first appealed against the decision [F154or the imposition of the requirement] mentioned in paragraph (1)(a).

(5) Where the appeal tribunal or Child Support Commissioner acts in accordance with paragraph (4)(b), following the determination of appeal B the Department shall, if appropriate, make a decision (under Article 19) superseding the decision of the tribunal or Child Support Commissioner in accordance with that determination.

(6) For the purposes of this Article, an appeal against a decision is pending if—

(a)an appeal against the decision has been brought but not determined;

(b)an application for leave to appeal against the decision has been made but not determined; or

(c)in such circumstances as may be prescribed, an appeal against the decision has not been brought (or, as the case may be, an application for leave to appeal against the decision has not been made) but the time for doing so has not yet expired.

(7) In this Article—

(a)the reference in paragraph (1)(a) to an appeal to a Child Support Commissioner includes a reference to an application for leave to appeal to a Child Support Commissioner; and

(b)any reference in sub-paragraph (a), (b) or (c) of paragraph (6) to an appeal, or to an application for leave to appeal, against a decision includes a reference to an application for, or for leave to apply for, judicial review of the decision under section 18 of the Judicature (Northern Ireland) Act 1978.

(8) Regulations may make provision supplementing that made by this Article.]

[F155Cases of error]N.I.

[F156Restrictions on liability in certain cases of errorN.I.

28ZC.—(1) Subject to paragraph (2), this Article applies where—

(a)the effect of the determination, whenever made, of an appeal to a Child Support Commissioner or the court (“the relevant determination”) is that the adjudicating authority's decision out of which the appeal arose was erroneous in point of law; and

(b)after the date of the relevant determination a decision falls to be made by the Department in accordance with that determination (or would, apart from this Article, fall to be so made)—

(i)with respect to an application for a [F157maintenance calculation] (made after the commencement date)F158...;

(ii)as to whether to revise, under Article 18, [F159any decision (made after the commencement date) referred to in Article 18(1A)]; or

(iii)on an application under Article 19 (made after the commencement date) for [F160any decision (made after the commencement date) referred to in Article 19(1)]

(2) This Article does not apply where the decision of the Department mentioned in paragraph (1)(b)—

(a)is one which, but for Article 28ZA(2)(a), would have been made before the date of the relevant determination; or

(b)is one made in pursuance of Article 28ZB(3) or (5).

(3) In so far as the decision relates to a person's liability F161... in respect of a period before the date of the relevant determination, it shall be made as if the adjudicating authority's decision had been found by the Commissioner or court not to have been erroneous in point of law.

(4) Paragraph (1)(a) shall be read as including a case where—

(a)the effect of the relevant determination is that part or all of a purported regulation or order is invalid; and

(b)the error of law made by the adjudicating authority was to act on the basis that the purported regulation or order (or the part held to be invalid) was valid.

(5) It is immaterial for the purposes of paragraph (1)—

(a)where such a decision as is mentioned in sub-paragraph (b)(i) falls to be made; or

(b)where such a decision as is mentioned in sub-paragraph (b)(ii) or (iii) falls to be made on an application under Article 18 or (as the case may be) Article 19,

whether the application was made before or after the date of the relevant determination.

(6) In this Article—

  • “adjudicating authority” means the Department or a child support officer [F162or, in the case of a decision made on a referral under Article 28D(1)(b), an appeal tribunal];

  • “the commencement date” means the date of the coming into operation of Article 44 of the Social Security (Northern Ireland) Order 1998;

  • “the court” means the High Court, the Court of Appeal, the Court of Session, the High Court or Court of Appeal in England and Wales, the [F163Supreme Court] or the Court of Justice of the European Community.

(7) The date of the relevant determination shall, in prescribed cases, be determined for the purposes of this Article in accordance with any regulations made for that purpose.

(8) Regulations made under paragraph (7) may include provision—

(a)for a determination of a higher court to be treated as if it had been made on the date of a determination of a lower court or a Child Support Commissioner; or

(b)for a determination of a lower court or a Child Support Commissioner to be treated as if it had been made on the date of a determination of a higher court.]

F162Words in art. 28ZC(6) in definition of "adjudicating authority" added (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 25, 68(2), Sch. 3 para. 21(e); S.R. 2003/53, art. 3(1), Sch.

[F164Correction of errors and setting aside of decisionsN.I.

28ZD.—(1) Regulations may make provision with respect to—

(a)the correction of accidental errors in any decision or record of a decision given under this Order; and

(b)the setting aside of any such decision in a case where it appears just to set the decision aside on the ground that—

(i)a document relating to the proceedings in which the decision was given was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party's representative or was not received at an appropriate time by the person who gave the decision; or

(ii)a party to the proceedings or a party's representative was not present at a hearing related to the proceedings.

(2) Nothing in paragraph (1) shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from regulations made by virtue of that paragraph.]

[F165VariationsN.I.

Application for variation of usual rules for calculating maintenanceN.I.

28A.—(1) Where an application for a maintenance calculation is made under Article 7 F166... the person with care or the non-resident parent may apply to the Department for the rules by which the calculation is made to be varied in accordance with this Order.

(2) Such an application is referred to in this Order as an “application for a variation”.

(3) An application for a variation may be made at any time before the Department has made a decision (under Article 13 or 14(1)) on the application for a maintenance calculation F167....

(4) A person who applies for a variation—

(a)need not make the application in writing unless the Department directs in any case that he must; and

(b)shall say upon what grounds the application is made.

(5) In other respects an application for a variation shall be made in such manner as may be prescribed.

(6) Schedule 4A shall have effect in relation to applications for a variation.

Preliminary consideration of applicationsN.I.

28B.—(1) Where an application for a variation has been duly made to the Department, it may give it a preliminary consideration.

(2) Where the Department does so it may, on completing the preliminary consideration, reject the application (and proceed to make its decision on the application for a maintenance calculation without any variation) if it appears to it—

(a)that there are no grounds on which it could agree to a variation;

(b)that it has insufficient information to make a decision on the application for the maintenance calculation under Article 13 (apart from any information needed in relation to the application for a variation), and therefore that its decision would be made under Article 14(1); or

(c)that other prescribed circumstances apply.

Imposition of regular payments conditionN.I.

28C.—(1) Where—

(a)an application for a variation is made by the non-resident parent; and

(b)the Department makes an interim maintenance decision,

it may also, if it has completed its preliminary consideration (under Article 28B) of the application for a variation and has not rejected it under that Article, impose on the non-resident parent one of the conditions mentioned in paragraph (2) (a “regular payments condition”).

(2) The conditions are that—

(a)the non-resident parent shall make the payments of child support maintenance specified in the interim maintenance decision;

(b)the non-resident parent shall make such lesser payments of child support maintenance as may be determined in accordance with regulations made by the Department.

(3) Where the Department imposes a regular payments condition, it shall give written notice of the imposition of the condition and of the effect of failure to comply with it to—

(a)the non-resident parent; and

(b)all the persons with care concerned.

(4) A regular payments condition shall cease to have effect—

(a)when the Department has made a decision on the application for a maintenance calculation under Article 13 (whether it agrees to a variation or not);

(b)on the withdrawal of the application for a variation.

(5) Where a non-resident parent has failed to comply with a regular payments condition, the Department may in prescribed circumstances refuse to consider the application for a variation, and instead make its decision under Article 13 as if no such application had been made.

(6) The question whether a non-resident parent has failed to comply with a regular payments condition shall be determined by the Department.

(7) Where the Department determines that a non-resident parent has failed to comply with a regular payments condition it shall give written notice of its determination to—

(a)that parent; and

(b)all the persons with care concerned.]

[F168Determination of applicationsN.I.

28D.—[F169(1) Where an application for a variation has not failed, the Department shall, in accordance with the relevant provisions of, or made under, this Order—

(a)either agree or not agree to a variation, and make a decision under Article 13 or 14(1); or

(b)refer the application to an appeal tribunal for the tribunal to determine what variation, if any, is to be made.]

(2) For the purposes of paragraph (1), an application for a [F170variation] has failed if—

(a)it has F171... been withdrawn; F172...

(b)the Department has rejected it on completing a preliminary consideration under Article 28B; [F173or

(c)the Department has refused to consider it under Article 28C(5).]

(3) In dealing with an application for a [F174variation] which has been referred to it under paragraph (1)(b), [F175an appeal tribunal] shall have the same powers, and be subject to the same duties, as would the Department if it were dealing with the application.]

[F176Matters to be taken into accountN.I.

28E.—(1) In determining [F177whether to agree to a variation], the Department shall have regard both to the general principles set out in paragraph (2) and to such other considerations as may be prescribed.

(2) The general principles are that—

(a)parents should be responsible for maintaining their children whenever they can afford to do so;

(b)where a parent has more than one child, his obligation to maintain any one of them should be no less of an obligation than his obligation to maintain any other of them.

(3) In determining [F178whether to agree to a variation], the Department shall take into account any representations made to it by the person with care or [F179non-resident parent] concerned.

(4) In determining [F180whether to agree to a variation], no account shall be taken of the fact that—

(a)any part of the income of the person with care concerned is, or would be if [F181the Department agreed to a variation], derived from any benefit; or

(b)some or all of any child support maintenance might be taken into account in any manner in relation to any entitlement to benefit.

(5) In this Article “benefit” has such meaning as may be prescribed.]

[F182Agreement to a variationN.I.

28F.—(1) The Department may agree to a variation if—

(a)it is satisfied that the case is one which falls within one or more of the cases set out in Part I of Schedule 4B or in regulations made under that Part; and

(b)it is the opinion of the Department that, in all the circumstances of the case, it would be just and equitable to agree to a variation.

(2) In considering whether it would be just and equitable in any case to agree to a variation, the Department—

(a)shall have regard, in particular, to the welfare of any child likely to be affected if it did agree to a variation; and

(b)shall, or as the case may be shall not, take any prescribed factors into account, or shall take them into account (or not) in prescribed circumstances.

(3) The Department shall not agree to a variation (and shall proceed to make its decision on the application for a maintenance calculation without any variation) if it is satisfied that—

(a)it has insufficient information to make a decision on the application for the maintenance calculation under Article 13, and therefore that its decision would be made under Article 14(1); or

(b)other prescribed circumstances apply.

(4) Where the Department agrees to a variation, it shall—

(a)determine the basis on which the amount of child support maintenance shall be calculated in response to the application for a maintenance calculation F183...; and

(b)make a decision under Article 13 on that basis.

(5) If the Department has made an interim maintenance decision, that decision shall be treated as having been replaced by the Department’s decision under Article 13, and except in prescribed circumstances any appeal connected with it (under Article 22) shall lapse.

(6) In determining whether or not to agree to a variation, the Department shall comply with regulations made under Part II of Schedule 4B.]

[F184Variations: revision and supersessionN.I.

28G.—(1) An application for a variation may also be made when a maintenance calculation is in force.

(2) The Department may by regulations provide for—

(a)Articles 18, 19 and 22; and

(b)Articles 28A to 28F and Schedules 4A and 4B,

to apply with prescribed modifications in relation to such applications.

(3) The Department may by regulations provide that, in prescribed cases (or except in prescribed cases), a decision under Article 19 made otherwise than pursuant to an application for a variation may be made on the basis of a variation agreed to for the purposes of an earlier decision without a new application for a variation having to be made.]

Departure directions: decisions and appealsN.I.

F185F18628H.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transitional provisionsN.I.

F187F18828I.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F189Voluntary Payments]N.I.

[F190Voluntary PaymentsN.I.

28J.—(1) This Article applies where—

(a)a person has applied for a maintenance calculation under Article 7(1) F191...;

(b)the Department has neither made a decision under Article 13 or 14 on the application, nor decided not to make a maintenance calculation; and

(c)the non-resident parent makes a voluntary payment.

(2) A voluntary payment is a payment—

(a)on account of child support maintenance which the non-resident parent expects to become liable to pay following the determination of the application (whether or not the amount of the payment is based on any estimate of his potential liability which the Department has agreed to give); and

(b)made before the maintenance calculation has been notified to the non-resident parent or (as the case may be) before the Department has notified the non-resident parent that it has decided not to make a maintenance calculation.

(3) In such circumstances and to such extent as may be prescribed—

(a)the voluntary payment may be set off against arrears of child support maintenance which accrued by virtue of the maintenance calculation taking effect on a date earlier than that on which it was notified to the non-resident parent;

(b)the amount payable under a maintenance calculation may be adjusted to take account of the voluntary payment.

(4) A voluntary payment shall be made to the Department unless it agrees, on such conditions as it may specify, that that payment may be made to the person with care, or to or through another person.

(5) The Department may by regulations make provision as to voluntary payments, and the regulations may in particular—

(a)prescribe what payments or descriptions of payment are, or are not, to count as voluntary payments;

(b)prescribe the extent to which and circumstances in which a payment, or a payment of a prescribed description, counts.]

Collection and enforcementN.I.

Collection of child support maintenanceN.I.

29.—(1) The Department may arrange for the collection of any child support maintenance payable in accordance with a [F192maintenance calculation] where—

F193(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)an application has been made to the Department under Article 7(2) for the Department to arrange for its collection.

(2) Where a [F194maintenance calculation] is made under this Order, payments of child support maintenance under the [F195calculation] shall be made in accordance with regulations made by the Department.

(3) The regulations may, in particular, make provision—

(a)for payments of child support maintenance to be made—

(i)to the person caring for the child or children in question;

(ii)to, or through, the Department; or

(iii)to, or through, such other person as the Department may specify;

(b)as to the method by which payments of child support maintenance are to be made;

(c)as to the intervals at which such payments are to be made;

(d)as to the method and timing of the transmission of payments which are made to or through the Department or any other person, in accordance with the regulations;

(e)empowering the Department to direct any person liable to make payments in accordance with the [F196calculation]—

(i)to make them by standing order or by any other method which requires one person to give his authority for payments to be made from an account of his to an account of another's on specific dates during the period for which the authority is in force and without the need for any further authority from him;

(ii)to open an account from which payments under the [F197calculation] may be made in accordance with the method of payment which that person is obliged to adopt;

(f)providing for the making of representations with respect to matters with which the regulations are concerned.

[F198(4) If the regulations include provision for payment by means of deduction in accordance with an order under Article 31, they must make provision—

(a)for that method of payment not to be used in any case where there is good reason not to use it; and

(b)for the person against whom the order under Article 31 would be made to have a right of appeal to a court of summary jurisdiction against a decision that the exclusion required by sub-paragraph (a) does not apply.

(5) On an appeal under regulations made under paragraph (4)(b) the court shall not question the maintenance calculation by reference to which the order under Article 31 would be made.

(6) Regulations under paragraph (4)(b) may include—

(a)provision with respect to the period within which a right of appeal under the regulations may be exercised;

(b)provision with respect to the powers of a court of summary jurisdiction in relation to an appeal under the regulations.

(7) If the regulations include provision for payment by means of deduction in accordance with an order under Article 31, they may make provision

(a)prescribing matters which are, or are not, to be taken into account in determining whether there is good reason not to use that method of payment;

(b)prescribing circumstances in which good reason not to use that method of payment is, or is not, to be regarded as existing.]

F198Art. 29(4)-(7) added (29.9.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 12, 41(1); S.R. 2008/399, art. 2(1)(a)

Collection and enforcement of other forms of maintenanceN.I.

30.—(1) Where the Department is arranging for the collection of any payments under Article 29 or paragraph (2), it may also arrange for the collection of any periodical payments, or secured periodical payments, of a prescribed kind which are payable to or for the benefit of any person who falls within a prescribed category.

[F199(2) The Department may, except in prescribed cases, arrange for the collection of any periodical payments, or secured periodical payments, of a prescribed kind which are payable for the benefit of a child even though the Department is not arranging for the collection of child support maintenance with respect to that child.]

(3) Where—

(a)the Department is arranging, under this Order, for the collection of different payments ( “the payments”) from the same [F200non-resident parent];

(b)an amount is collected by the Department from the [F200non-resident parent] which is less than the total amount due in respect of the payments; and

(c)the [F200non-resident parent] has not stipulated how that amount is to be allocated by the Department as between payments,

the Department may allocate that amount as it sees fit.

(4) The Department may by regulations make provision for Articles 29 and 31 to 37 to apply, with such modifications (if any) as it considers necessary or expedient, for the purpose of enabling it to enforce any obligation to pay any amount [F201for the collection of which it is authorised under this Article to make arrangements].

Deduction from earnings ordersN.I.

31.—(1) This Article applies where any person ( “the liable person”) is liable to make payments of child support maintenance.

(2) The Department may make an order ( “a deduction from earnings order”) against a liable person to secure the payment of any amount due under the [F202maintenance calculation] in question.

(3) A deduction from earnings order may be made so as to secure the payment of—

(a)arrears of child support maintenance payable under the [F203calculation];

(b)amounts of child support maintenance which will become due under the [F204calculation]; or

(c)both such arrears and such future amounts.

(4) A deduction from earnings order—

(a)shall be expressed to be directed at a person (“the employer”) who has the liable person in his employment; and

(b)shall have effect from such date as may be specified in the order.

(5) A deduction from earnings order shall operate as an instruction to the employer to—

(a)make deductions from the liable person's earnings; and

(b)pay the amounts deducted to the Department.

(6) The Department shall serve a copy of any deduction from earnings order which it makes under this Article on—

(a)the person who appears to the Department to have the liable person in question in his employment; and

(b)the liable person.

(7) Where—

(a)a deduction from earnings order has been made; and

(b)a copy of the order has been served on the liable person's employer,

it shall be the duty of that employer to comply with the order; but he shall not be under any liability for non-compliance before the end of the period of 7 days beginning with the date on which the copy was served on him.

(8) In this Article and in Article 32 “earnings” has such meaning as may be prescribed.

Regulations about deduction from earnings ordersN.I.

32.—(1) The Department may by regulations make provision with respect to deduction from earnings orders.

(2) The regulations may, in particular, make provision—

(a)as to the circumstances in which one person is to be treated as employed by another;

(b)requiring any deduction from earnings under an order to be made in the prescribed manner;

[F205(bb)for the amount or amounts which are to be deducted from the liable person’s earnings not to exceed a prescribed proportion of his earnings (as determined by the employer);]

(c)requiring an order to specify the amount or amounts to which the order relates and the amount or amounts which are to be deducted from the liable person's earnings in order to meet his liabilities under the [F206maintenance calculation] in question;

(d)requiring the intervals between deductions to be made under an order to be specified in the order;

(e)as to the payment of sums deducted under an order to the Department;

(f)allowing the person who deducts and pays any amount under an order to deduct from the liable person's earnings a prescribed sum towards his administrative costs;

(g)with respect to the notification to be given to the liable person of amounts deducted, and amounts paid, under the order;

(h)requiring any person on whom a copy of an order is served to notify the Department in the prescribed manner and within a prescribed period if he does not have the liable person in his employment or if the liable person ceases to be in his employment;

(i)as to the operation of an order where the liable person is in the employment of the Crown;

(j)for the variation of orders;

(k)similar to that made by Article 31(7), in relation to any variation of an order;

(l)for an order to lapse when the employer concerned ceases to have the liable person in his employment;

(m)as to the revival of an order in such circumstances as may be prescribed;

(n)allowing or requiring an order to be discharged;

(o)as to the giving of notice by the Department to the employer concerned that an order has lapsed or has ceased to have effect.

(3) The regulations may include provision that while a deduction from earnings order is in force—

(a)the liable person shall notify the Department, in the prescribed manner and within a prescribed period, of each occasion on which he leaves any employment or becomes employed, or re-employed, and shall include in such a notification a statement of his earnings and expected earnings from the employment concerned and of such other matters as may be prescribed;

(b)any person who becomes the liable person's employer and knows that the order is in force shall notify the Department, in the prescribed manner and within a prescribed period, that he is the liable person's employer, and shall include in such a notification a statement of the liable person's earnings and expected earnings from the employment concerned and of such other matters as may be prescribed.

(4) The regulations may include provision with respect to the priority as between a deduction from earnings order and—

(a)any other deduction from earnings order;

(b)any order under any other statutory provision which provides for deductions from the liable person's earnings.

(5) The regulations may include a provision that a liable person may appeal to a court of summary jurisdiction if he is aggrieved by the making of a deduction from earnings order against him, or by the terms of any such order, or there is a dispute as to whether payments constitute earnings or as to any other prescribed matter relating to the order.

(6) On an appeal under paragraph (5) the court shall not question the [F207maintenance calculation] by reference to which the deduction from earnings order was made.

(7) Regulations made by virtue of paragraph (5) may include [F208—

(a)provision with respect to the period within which a right of appeal under the regulations may be exercised;

(b)] provision as to the powers of a court of summary jurisdiction in relation to an appeal (which may include provision as to the quashing of a deduction from earnings order or the variation of the terms of such an order).

(8) If any person fails to comply with the requirements of a deduction from earnings order or with any regulation under this Article which is designated for the purposes of this paragraph, he shall be guilty of an offence.

(9) In paragraph (8) “designated” means designated by the regulations.

(10) It shall be a defence for a person charged with an offence under paragraph (8) to prove that he took all reasonable steps to comply with the requirements in question.

(11) Any person guilty of an offence under paragraph (8) shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.

F205Art. 32(2)(bb) inserted (3.3.2003 for specified purposes, 3.10.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), s. 68(1)(2), Sch. 3 para. 24 (with s. 66(6)); S.R. 2003/53, art. 3, Sch.; S.R. 2008/402, art. 2(b)(i)(ii)

[F209Orders for regular deductions from accountsN.I.

32A—(1) If in relation to any person it appears to the Department—

(a)that the person has failed to pay an amount of child support maintenance; and

(b)that the person holds an account with a deposit-taker;

it may make an order against that person to secure the payment of any amount due under the maintenance calculation in question by means of regular deductions from the account

(2) An order under this Article may be made so as to secure the payment of—

(a)arrears of child support maintenance payable under the calculation;

(b)amounts of child support maintenance which will become payable under the calculation; or

(c)both such arrears and such future amounts.

(3) An order under this Article may be made in respect of amounts due under a maintenance calculation which is the subject of an appeal only if it appears to the Department—

(a)that liability for the amounts would not be affected were the appeal to succeed; or

(b)where sub-paragraph (a) does not apply, that the making of an order under this Article in respect of the amounts would nonetheless be fair in all the circumstances.

(4) An order under this Article—

(a)may not be made in respect of an account of a prescribed description; and

(b)may be made in respect of a joint account which is held by the person against whom the order is made and one or more other persons, and which is not of a description prescribed under sub-paragraph (a), if (but only if) regulations made by the Department so provide.

(5) An order under this Article—

(a)shall specify the account in respect of which it is made;

(b)shall be expressed to be directed at the deposit-taker with which the account is held; and

(c)shall have effect from such date as may be specified in the order.

(6) An order under this Article shall operate as an instruction to the deposit-taker at which it is directed to—

(a)make deductions from the amount (if any) standing to the credit of the account specified in the order; and

(b)pay the amount deducted to the Department.

(7) The Department shall serve a copy of any order made under this Article on—

(a)the deposit-taker at which it is directed;

(b)the person against whom it is made; and

(c)if the order is made in respect of a joint account, the other account holders.

(8) Where—

(a)an order under this Article has been made; an

(b)a copy of the order has been served on the deposit-taker at which it is directed,

it shall be the duty of that deposit-taker to comply with the order; but the deposit-taker shall not be under any liability for non-compliance before the end of the period of 7 days beginning with the day on which the copy was served on the deposit-taker.

(9) Where regulations have been made under Article 29(3)(a), a person liable to pay an amount of child support maintenance is to be taken for the purposes of this Article to have failed to pay an amount of child support maintenance unless it is paid to or through the person specified in, or by virtue of, the regulations for the case in question.

F209Arts. 32A-32D inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 14, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(a)

Orders under Article 32A: joint accountsN.I.

32B—(1) Before making an order under Article 32A in respect of a joint account the Department shall offer each of the account-holders an opportunity to make representations about—

(a)the proposal to make the order; and

(b)the amounts to be deducted under the order, if it is made.

(2) The amounts to be deducted from a joint account under such an order shall not exceed the amounts that appear to the Department to be fair in all the circumstances.

(3) In determining those amounts the Department shall have particular regard to—

(a)any representations made in accordance with paragraph (1)(b);

(b)the amount contributed to the account by each of the account-holders; and

(c)such other matters as may be prescribed.

F209Arts. 32A-32D inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 14, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(a)

Regulations about orders under Article 32AN.I.

32C—(1) The Department may by regulations make provision with respect to orders under Article 32A.

(2) Regulations under paragraph (1) may, in particular, make provision—

(a)requiring an order to specify the amount or amounts in respect of which it is made;

(b)requiring an order to specify the amounts which are to be deducted under it in order to meet liabilities under the maintenance calculation in question;

(c)requiring an order to specify the dates on which deductions are to be made under it;

(d)for the rate of deduction under an order not to exceed such rate as may be specified in, or determined in accordance with, the regulations;

(e)as to circumstances in which amounts standing to the credit of an account are to be disregarded for the purposes of Article 32A

(f)as to the payment of sums deducted under an order to the Department;

(g)allowing the deposit-taker at which an order is directed to deduct from the amount standing to the credit of the account specified in the order a prescribed amount towards its administrative costs before making any deduction required by Article 32A(6)(a);

(h)with respect to notifications to be given to the person against whom an order is made (and, in the case of an order made in respect of a joint account, to the other account holders) of amounts deducted, and amounts paid, under the order;

(i)requiring the deposit-taker at which an order is directed to notify the Department in the prescribed manner and within a prescribed period—

(i)if the account specified in the order does not exist at the time at which the order is served on the deposit-taker;

(ii)of any other accounts held with the deposit-taker at that time by the person against whom the order is made;

(j)requiring the deposit-taker at which an order is directed to notify the Department in the prescribed manner and within a prescribed period if, after the time at which the order is served on the deposit-taker—

(i)the account specified in the order is closed;

(ii)a new account of any description is opened with the deposit-taker by the person against whom the order is made;

(k)as to circumstances in which the deposit-taker at which an order is directed, the person against whom the order is made and (in the case of an order made in respect of a joint account) the other account-holders may apply to the Department for it to review the order and as to such a review;

(l)for the variation of orders;

(m)similar to that made by Article 32A(8), in relation to any variation of an order;

(n)for an order to lapse in such circumstances as may be prescribed;

(o)as to the revival of an order in such circumstances as may be prescribed;

(p)allowing or requiring an order to be discharged;

(q)as to the giving of notice by the Department to the deposit-taker that an order has lapsed or ceased to have effect.

(3) The Department may by regulations make provision with respect to priority as between an order under Article 32A and—

(a)any other order under that Article;

(b)any order under any other statutory provision which provides for deductions from the same account.

(4) The Department shall by regulations make provision for any person affected to have a right to appeal to a court

(a)against the making of an order under Article 32A;

(b)against any decision made by the Department on an application under regulations made under paragraph (2)(k).

(5) On an appeal under regulations made under paragraph (4)(a), the court shall not question the maintenance calculation by reference to which the order was made.

(6) Regulations under paragraph (4) may include—

(a)provision with respect to the period within which a right of appeal under the regulations may be exercised;

(b)provision with respect to the powers of the court to which the appeal under the regulations lies.

F209Arts. 32A-32D inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 14, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(a)

Orders under Article 32A: offencesN.I.

32D—(1) A person who fails to comply with the requirements of—

(a)an order under Article 32A, or

(b)any regulation under Article 32C which is designated by the regulations for the purposes of this sub-paragraph,

commits an offence.

(2) It shall be a defence for a person charged with an offence under paragraph (1) to prove that the person took all reasonable steps to comply with the requirements in question.

(3) A person guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.]

F209Arts. 32A-32D inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 14, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(a)

[F210Lump sum deductions: interim ordersN.I.

32E—(1) The Department may make an order under this Article if it appears to the Department that a person (referred to in this Article and Articles 32F to 32J as “the liable person”) has failed to pay an amount of child support maintenance and—

(a)an amount stands to the credit of an account held by the liable person with a deposit-taker; or

(b)an amount not within sub-paragraph (a) that is of a prescribed description is due or accruing to the liable person from another person (referred to in this Article and Articles 32F to 32J as the “third party”).

(2) An order under this Article—

(a)may not be made by virtue of paragraph (1)(a) in respect of an account of a prescribed description; an

(b)may be made by virtue of paragraph (1)(a) in respect of a joint account which is held by the liable person and one or more other persons, and which is not of a description prescribed under sub-paragraph (a) of this paragraph, if (but only if) regulations made by the Department so provide.

(3) The Department may by regulations make provision as to conditions that are to be disregarded in determining whether an amount is due or accruing to the liable person for the purposes of paragraph (1)(b).

(4) An order under this Article—

(a)shall be expressed to be directed at the deposit-taker or third party in question;

(b)if made by virtue of paragraph (1)(a), shall specify the account in respect of which it is made; and

(c)shall specify the amount of arrears of child support maintenance in respect of which the Department proposes to make an order under Article 32F.

(5) An order under this Article may specify an amount of arrears due under a maintenance calculation which is the subject of an appeal only if it appears to the Department—

(a)that liability for the amount would not be affected were the appeal to succeed; or

(b)where sub-paragraph (a) does not apply, that the making of an order under Article 32F in respect of the amount would nonetheless be fair in all the circumstances.

(6) The Department shall serve a copy of any order made under this Article on—

(a)the deposit-taker or third party at which it is directed;

(b)the liable person; and

(c)if the order is made in respect of a joint account, the other account-holders.

(7) An order under this Article shall come into force at the time at which it is served on the deposit-taker or third party at which it is directed.

(8) An order under this Article shall cease to be in force at the earliest of the following—

(a)the time at which the prescribed period ends;

(b)the time at which the order under this Article lapses or is discharged; and

(c)the time at which an order under Article 32F made in pursuance of the proposal specified in the order under this Article is served on the deposit-taker or third party at which that order is directed.

(9) Where regulations have been made under Article 29(3)(a), a person liable to pay an amount of child support maintenance is to be taken for the purposes of this Article to have failed to pay the amount unless it is paid to or through the person specified in, or by virtue of, the regulations for the case in question.

F210Arts. 32E-32K inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 15, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(b)

Lump sum deductions: final orderN.I.

32F—(1) The Department may make an order under this Article in pursuance of a proposal specified in an order under Article 32E if—

(a)the order in which the proposal was specified (“the interim order”) is in force;

(b)the period prescribed for the making of representations to the Department in respect of the proposal specified in the interim order has expired; and

(c)the Department has considered any representations made to it during that period.

(2) An order under this Article—

(a)shall be expressed to be directed at the deposit-taker or third party at which the interim order was directed;

(b)if the interim order was made by virtue of Article 32E(1)(a), shall specify the account specified in the interim order; and

(c)shall specify the amount of arrears of child support maintenance in respect of which it is made.

(3) The amount so specified—

(a)shall not exceed the amount of arrears specified in the interim order which remain unpaid at the time at which the order under this Article is made; and

(b)if the order is made in respect of a joint account, shall not exceed the amount that appears to the Department to be fair in all the circumstances.

(4) In determining the amount to be specified in an order made in respect of a joint account the Department shall have particular regard—

(a)to the amount contributed to the account by each of the account-holders; and

(b)to such other matters as may be prescribed.

(5) An order under this Article may specify an amount of arrears due under a maintenance calculation which is the subject of an appeal only if it appears to the Department—

(a)that liability for the amount would not be affected were the appeal to succeed; or

(b)where sub-paragraph (a) does not apply, that the making of an order under this Article in respect of the amount would nonetheless be fair in all the circumstances.

(6) The Department shall serve a copy of any order made under this Article on—

(a)the deposit-taker or third party at which it is directed;

(b)the liable person; an

(c)if the order is made in respect of a joint account, the other account-holders.

F210Arts. 32E-32K inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 15, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(b)

Orders under Articles 32E and 32F: freezing of accounts etc.N.I.

32G—(1) During the relevant period, an order under Article 32E or 32F which specifies an account held with a deposit-taker shall operate as an instruction to the deposit-taker not to do anything that would reduce the amount standing to the credit of the account below the amount specified in the order (or, if already below that amount, that would further reduce it).

(2) During the relevant period, any other order under Article 32E or 32F shall operate as an instruction to the third party at which it is directed not to do anything that would reduce the amount due to the liable person below the amount specified in the order (or, if already below that amount, that would further reduce it).

(3) Paragraphs (1) and (2) have effect subject to regulations made under Article 32I(1).

(4) In this Article “the relevant period”, in relation to an order under Article 32E, means the period during which the order is in force.

(5) In this Article and Article 32H “the relevant period”, in relation to an order under Article 32F, means the period which—

(a)begins with the service of the order on the deposit-taker or third party at which it is directed; and

(b)(subject to paragraph (6)) ends with the end of the period during which an appeal can be brought against the order by virtue of regulations under Article 32J(5).

(6) If an appeal is brought by virtue of the regulations, the relevant period ends at the time at which—

(a)proceedings on the appeal (including any proceedings on a further appeal) have been concluded; and

(b)any period during which a further appeal may ordinarily be brought has ended.

(7) References in this Article and Articles 32H and 32J to the amount due to the liable person are to be read as references to the total of any amounts within Article 32E(1)(b) that are due or accruing to the liable person from the third party in question.

F210Arts. 32E-32K inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 15, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(b)

Modifications etc. (not altering text)

C10Art. 32G(1) restricted (3.8.2009) by The Child Support (Collection and Enforcement) Regulations (S.R. 1992/390), reg. 25N (as inserted by S.R. 2009/286, regs. 1, 2)

Orders under Article 32F: deductions and paymentsN.I.

32H—(1) Once the relevant period has ended, an order under Article 32F which specifies an account held with a deposit-taker shall operate as an instruction to the deposit-taker—

(a)if the amount standing to the credit of the account is less than the remaining amount, to pay to the Department the amount standing to the credit of the account; and

(b)otherwise, to deduct from the account and pay to the Department the remaining amount

(2) If an amount of arrears specified in the order remains unpaid after any payment required by paragraph (1) has been made, the order shall operate until the relevant time as an instruction to the deposit-taker—

(a)to pay to the Department any amount (not exceeding the remaining amount) standing to the credit of the account specified in the order; and

(b)not to do anything else that would reduce the amount standing to the credit of the account.

(3) Once the relevant period has ended, any other order under Article 32F shall operate as an instruction to the third party at which it is directed—

(a)if the amount due to the liable person is less than the remaining amount, to pay to the Department the amount due to the liable person; and

(b)otherwise, to deduct from the amount due to the liable person and pay to the Department the remaining amount.

(4) If an amount of arrears specified in the order remains unpaid after any payment required by paragraph (3) has been made, the order shall operate until the relevant time as an instruction to the third party—

(a)to pay to the Department any amount (not exceeding the remaining amount) due to the liable person; and

(b)not to do anything else that would reduce any amount due to the liable person.

(5) This Article has effect subject to regulations made under Articles 32I(1) and 32J(2)(c).

(6) In this Article—

“the relevant time” means the earliest of the following—

(a)

the time at which the remaining amount is paid;

(b)

the time at which the order lapses or is discharged; and

(c)

the time at which a prescribed event occurs or prescribed circumstances arise;

“the remaining amount”, in relation to any time, means the amount of arrears specified in the order under Article 32F which remains unpaid at that time.

F210Arts. 32E-32K inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 15, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(b)

Modifications etc. (not altering text)

C11Art. 32H(2)(b) restricted (3.8.2009) by The Child Support (Collection and Enforcement) Regulations (S.R. 1992/390), reg. 25N (as inserted by S.R. 2009/286, regs. 1, 2)

Power to disapply Articles 32G(1) and (2) and 32H(2)(b) and (4)(b)N.I.

32I—(1) The Department may by regulations make provision as to circumstances in which things that would otherwise be in breach of Articles 32G(1) and (2) and 32H(2)(b) and (4)(b) may be done.

(2) Regulations under paragraph (1) may require the Department's consent to be obtained in prescribed circumstances.

(3) Regulations under paragraph (1) which require the Department's consent to be obtained may provide for an application for that consent to be made

(a)by the deposit-taker or third party at which the order under Article 32E or 32F is directed;

(b)by the liable person; and

(c)if the order is made in respect of a joint account, by any of the other account-holders.

(4) If regulations under paragraph (1) require the Department's consent to be obtained, the Department shall by regulations provide for a person of a prescribed description to have a right of appeal to a court against the withholding of that consent.

(5) Regulations under paragraph (4) may include—

(a)provision with respect to the period within which a right of appeal under the regulations may be exercised;

(b)provision with respect to the powers of the court to which the appeal under the regulations lies.

F210Arts. 32E-32K inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 15, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(b)

Regulations about orders under Article 32E or 32FN.I.

32J—(1) The Department may by regulations make provision with respect to orders under Article 32E or 32F.

(2) The regulations may, in particular, make provision—

(a)as to circumstances in which amounts standing to the credit of an account are to be disregarded for the purposes of Articles 32E, 32G and 32H;

(b)as to the payment to the Department of sums deducted under an order under Article 32F;

(c)allowing a deposit-taker or third party at which an order under Article 32F is directed to deduct from the amount standing to the credit of the account specified in the order, or due to the liable person, a prescribed amount towards its administrative costs before making any payment to the Department required by Article 32H;

(d)with respect to notifications to be given to the liable person (and, in the case of an order made in respect of a joint account, to the other account-holders) as to amounts deducted, and amounts paid, under an order under Article 32F;

(e)requiring a deposit-taker or third party at which an order under Article 32E or 32F is directed to supply information of a prescribed description to the Department, or to notify the Department if a prescribed event occurs or prescribed circumstances arise;

(f)for the variation of an order under Article 32E or 32F;

(g)for an order under Article 32E or 32F to lapse in such circumstances as may be prescribed;

(h)as to the revival of an order under Article 32E or 32F in such circumstances as may be prescribed

(i)allowing or requiring an order under Article 32E or 32F to be discharged.

(3) Where regulations under paragraph (1) make provision for the variation of an order under Article 32E or 32F, the power to vary the order shall not be exercised so as to increase the amount of arrears of child support maintenance specified in the order.

(4) The Department may by regulations make provision with respect to priority as between an order under Article 32F and—

(a)any other order under that Article;

(b)any order under any other statutory provision which provides for payments to be made from amounts to which the order under Article 32F relates.

(5) The Department shall by regulations make provision for any person affected by an order under Article 32F to have a right to appeal to a court against the making of the order.

(6) On an appeal under regulations under paragraph (5), the court shall not question the maintenance calculation by reference to which the order under Article 32F was made.

(7) Regulations under paragraph (5) may include—

(a)provision with respect to the period within which a right of appeal under the regulations may be exercised;

(b)provision with respect to the powers of the court to which the appeal under the regulations lies.

F210Arts. 32E-32K inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 15, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(b)

Lump sum deduction orders: offencesN.I.

32K—(1) A person who fails to comply with the requirements of—

(a)an order under Article 32E or 32F; or

(b)any regulation under Article 32J which is designated by the regulations for the purposes of this sub-paragraph,

commits an offence.

(2) It shall be a defence for a person charged with an offence under paragraph (1) to prove that the person took all reasonable steps to comply with the requirements in question.

(3) A person guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.]

F210Arts. 32E-32K inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 15, 41(1) (with s. 40(2)(3)); S.R. 2009/216, art. 2(1)(b)

Liability ordersN.I.

33.—(1) This Article applies where—

(a)a person who is liable to make payments of child support maintenance ( “the liable person”) fails to make one or more of those payments; and

(b)it appears to the Department that—

(i)it is inappropriate to make a deduction from earnings order against him (because, for example, he is not employed); or

(ii)although such an order has been made against him, it has proved ineffective as a means of securing that payments are made in accordance with the [F211maintenance calculation] in question.

(2) The Department may apply to a court of summary jurisdiction for an order ( “a liability order”) against the liable person.

(3) Where the Department applies for a liability order, the court of summary jurisdiction shall make the order if satisfied that the payments in question have become payable by the liable person and have not been paid.

(4) On an application under paragraph (2), the court shall not question the [F212maintenance calculation] under which the payments of child support maintenance fell to be made.

[F213(5) Where regulations have been made under Article 29(3)(a)—

(a)the liable person fails to make a payment (for the purposes of paragraph (1)(a)); and

(b)a payment is not paid (for the purposes of paragraph (3)),

unless the payment is made to, or through, the person specified in or by virtue of those regulations for the case of the liable person in question.]

Regulations about liability ordersN.I.

34.—(1) The Department may make regulations—

(a)prescribing the procedure to be followed in dealing with an application by the Department for a liability order;

(b)prescribing the form and contents of a liability order; and

(c)providing that where a court of summary jurisdiction has made a liability order, the person against whom it is made shall, during such time as the amount in respect of which the order was made remains wholly or partly unpaid, be under a duty to supply relevant information to the Department.

(2) In paragraph (1) “relevant information” means any information of a prescribed description which is in the possession of the liable person and which the Department has asked him to supply.

Enforcement of liability ordersN.I.

35.—(1) Where a liability order has been made against a person ( “the liable person”)—

(a)the order shall be enforceable by the Enforcement of Judgments Office on an application to it by the Department; and

(b)the Judgments Enforcement (Northern Ireland) Order 1981F214 ( “the Order of 1981”) shall apply in relation to the amount in respect of which the order was made, to the extent that it remains unpaid, as a money judgment, but subject to paragraphs (2) and (3).

(2) Without prejudice to Article 141 of the Order of 1981(power to make Judgment Enforcement Rules), the Departmentmay, with the consent of the Lord Chancellor, make such regulations with respect to the enforcement of liability orders by the Enforcement of Judgments Office as it considers appropriate.

(3) Regulations made under paragraph (2) may, in particular, provide for the modification of any provision made by or under the Order of 1981 in its application to liability orders.

(4) In paragraph (3) “modification” includes the making of additions, omissions or amendments.

Enforcement in Northern Ireland of English and Scottish liability ordersN.I.

36.—(1) The Department may by regulations make provision for, or in connection with, the enforcement in Northern Ireland of—

(a)any liability order made by a court in England and Wales; or

(b)any liability order made by the sheriff in Scotland,

as if it had been made by a court of summary jurisdiction in Northern Ireland.

(2) Regulations under paragraph (1) may, in particular, make provision for the registration of any such order as is referred to in that paragraph in connection with its enforcement in Northern Ireland.

[F215Commitment to prison and disqualification from drivingN.I.

36A.—(1) Where the Department has sought to recover an amount by virtue of Article 35 and that amount, or any portion of it, remains unpaid, the Department may apply to the court under this Article.

(2) An application under this Article is for whichever the court considers appropriate in all the circumstances of—

(a)the issue of a warrant committing the liable person to prison; or

(b)an order for him to be disqualified for holding or obtaining a driving licence.

(3) On any such application the court shall (in the presence of the liable person) inquire as to—

(a)whether he needs a driving licence to earn his living;

(b)his means; and

(c)whether there has been wilful refusal or culpable neglect on his part.

(4) The Department may make representations to the court as to whether the Department thinks it more appropriate to commit the liable person to prison or to disqualify him for holding or obtaining a driving licence; and the liable person may reply to those representations.

(5) In this Article and Article 37A, “driving licence” means a licence to drive a motor vehicle granted under Part II of the Road Traffic (Northern Ireland) Order 1981.

(6) In this Article and Articles 37 and 37A, “the court” means a court of summary jurisdiction.]

Commitment to prisonN.I.

37.  Paras. (1),(2) rep. by 2000 c. 4 (NI)

(3) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person it may—

(a)issue a warrant of commitment against him; or

(b)fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as it thinks just.

(4) Any such warrant—

(a)shall be made in respect of an amount equal to the aggregate of—

(i)the amount in respect of which the liability order was made or so much of that amount as remains outstanding; and

(ii)an amount (determined in accordance with regulations made by the Department) in respect of the costs of commitment; and

(b)shall state that amount.

(5) No warrant may be issued under this Article against a person who is under the age of 18.

(6) A warrant issued under this Article shall order the liable person—

(a)to be imprisoned for a specified period; but

(b)to be released (unless he is in custody for some other reason) on payment of the amount stated in the warrant.

(7) The maximum period of imprisonment which may be imposed by virtue of paragraph (6) shall be calculated in accordance with Schedule 3 to the Magistrates' Courts (Northern Ireland) Order 1981F216 (maximum periods of imprisonment in default of payment) but shall not exceed six weeks.

(8) The Department may by regulations make provision for the period of imprisonment specified in any warrant issued under this Article to be reduced where there is part payment of the amount in respect of which the warrant was issued.

(9) A warrant issued under this Article may be directed to such person or persons as the court issuing it thinks fit.

(10) Article 110 of the Magistrates' Courts (Northern Ireland) Order 1981 (application of money found on defaulter) shall apply in relation to a warrant issued under this Article against a liable person as it applies in relation to the enforcement of a sum mentioned in paragraph (1) of that Article.

(11) The Department may by regulations make provision—

(a)as to the form of any warrant issued under this Article;

(b)allowing an application under this Article to be renewed where no warrant is issued or term of imprisonment is fixed;

(c)that a statement in writing to the effect that wages of any amount have been paid to the liable person during any period, purporting to be signed by or on behalf of his employer, shall be evidence of the facts stated;

(d)that, for the purposes of enabling an inquiry to be made as to the liable person's conduct and means, a justice of the peace may issue a summons to him to appear before a court of summary jurisdiction and (if he does not obey) may issue a warrant for his arrest;

(e)that for the purpose of enabling such an inquiry, a justice of the peace may issue a warrant for the liable person's arrest without issuing a summons;

(f)as to the execution of a warrant for arrest.

[F217Disqualification from driving: further provisionN.I.

37A.—(1) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person, it may—

(a)order him to be disqualified, for such period specified in the order but not exceeding two years as it thinks fit, for holding or obtaining a driving licence (a “disqualification order”); or

(b)make a disqualification order but suspend its operation until such time and on such conditions (if any) as it thinks just.

(2) The court may not take action under both Article 37 and this Article.

(3) A disqualification order shall state the amount in respect of which it is made, which shall be the aggregate of—

(a)the amount in respect of which the liability order was made or so much of that amount as remains outstanding; and

(b)an amount (determined in accordance with regulations made by the Department) in respect of the costs of the application under Article 36A.

(4) A court which makes a disqualification order shall require the person to whom it relates to produce any driving licence held by him, and its counterpart (within the meaning of Part II of the Road Traffic (Northern Ireland) Order 1981).

(5) On an application by the Department or the liable person, the court—

(a)may make an order substituting a shorter period of disqualification, or make an order revoking the disqualification order, if part of the amount referred to in paragraph (3) (the “amount due”) is paid to any person authorised to receive it; and

(b)shall make an order revoking the disqualification order if all of the amount due is so paid.

(6) The Department may make representations to the court as to the amount which should be paid before it would be appropriate to make an order revoking the disqualification order under paragraph (5)(a), and the liable person may reply to those representations.

(7) The Department may make a further application under Article 36A if the amount due has not been paid in full when the period of disqualification specified in the disqualification order expires.

(8) Where a court—

(a)makes a disqualification order;

(b)makes an order under paragraph (5); or

(c)allows an appeal against a disqualification order,

it shall send notice of that fact to the Department; and the notice shall contain such particulars and be sent in such manner and to such address as the Department may determine.

(9) Where a court makes a disqualification order, it shall also send the driving licence and its counterpart, on their being produced to the court, to the Department at such address as the Department may determine.

(10) Article 110 of the Magistrates' Courts (Northern Ireland) Order 1981 (application of sums found upon defaulter) shall apply in relation to a disqualification order under this Article in relation to a liable person as it applies in relation to the enforcement of a sum mentioned in paragraph (1) of that Article.

(11) The Department may by regulations make provision in relation to disqualification orders corresponding to the provision it may make under Article 37(11).]

Arrears of child support maintenanceN.I.

38.—(1) This Article applies where—

(a)the Department is authorised under Article 7 F218... to recover child support maintenance payable by [F219a non-resident parent] in accordance with a [F220maintenance calculation]; and

(b)the [F219non-resident parent] has failed to make one or more payments of child support maintenance due from him in accordance with that [F221calculation].

[F222(2) Where the Department recovers any such arrears it may, in such circumstances as may be prescribed and to such extent as may be prescribed, retain them if it is satisfied that the amount of any benefit paid to or in respect of the person with care of the child or children in question would have been less had the [F219non-resident parent] made the payment or payments of child support maintenance in question.

(2A) In determining for the purposes of paragraph (2) whether the amount of any benefit paid would have been less at any time than the amount which was paid at that time, in a case where the [F223maintenance calculation] had affect from a date earlier than that on which it was made, the [F224calculation] shall be taken to have been in force at that time.]

F225(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F225(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F225(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Any sums retained by the Department by virtue of this Article shall be paid by it into the Consolidated Fund.

Modifications etc. (not altering text)

C12Art. 38(4) (as originally enacted) repealed in part (14.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), s. 41(1), Sch. 4 para. 1(29) (with s. 37); S.R. 2008/291, art. 2(2)(b) (with art. 2(3)(4)); S.R. 2008/419, art. 2

[F226Penalty paymentsN.I.

38A.—(1) The Department may by regulations make provision for the payment to it by non-resident parents who are in arrears with payments of child support maintenance of penalty payments determined in accordance with the regulations.

(2) The amount of a penalty payment in respect of any week may not exceed 25 per cent. of the amount of child support maintenance payable for that week, but otherwise is to be determined by the Department.

(3) The liability of a non-resident parent to make a penalty payment does not affect his liability to pay the arrears of child support maintenance concerned.

(4) Regulations under paragraph (1) may, in particular, make provision—

(a)as to the time at which a penalty payment shall be payable;

(b)for the Department to waive a penalty payment, or part of it.

(5) The provisions of this Order with respect to—

(a)the collection of child support maintenance;

(b)the enforcement of an obligation to pay child support maintenance,

apply equally (with any necessary modifications) to penalty payments payable by virtue of regulations under this Article.

(6) The Department shall pay penalty payments received by it into the Consolidated Fund.]

Modifications etc. (not altering text)

C13Art. 38A(5) (as originally enacted) repealed in part (14.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), s. 41(1), Sch. 4 para. 1(29)(a) (with s. 37); S.R. 2008/291, art. 2(2)(b) (with art. 2(3)(4)); S.R. 2008/419, art. 2

[F227Repayment of overpaid child support maintenanceN.I.

38B.—(1) This Article applies where it appears to the Department that [F228a non-resident parent] has made a payment by way of child support maintenance which amounts to an overpayment by him of that maintenance and that—

(a)it would not be possible for the [F228non-resident parent] to recover the amount of overpayment by way of an adjustment of the amount payable under a [F229maintenance calculation]; or

(b)it would be inappropriate to rely on an adjustment of the amount payable under a [F230maintenance calculation] as the means of enabling the [F228non-resident parent] to recover the amount of the overpayment.

[F231(1A) This Article also applies where the non-resident parent has made a voluntary payment and it appears to the Department—

(a)that he is not liable to pay child support maintenance; or

(b)that he is liable, but some or all of the payment amounts to an overpayment,

and, in a case falling within sub-paragraph (b), it also appears to the Department that paragraph (1)(a) or (b) applies.]

(2) The Department may make such payment to the [F228non-resident parent] by way of reimbursement, or partial reimbursement, of the overpayment as the Department considers appropriate.

(3) Where the Department has made a payment under this Article the Department may, in such circumstances as may be prescribed, require the relevant person to pay to it the whole, or a specified proportion, of the amount of that payment.

(4) Any such requirement shall be imposed by giving the relevant person a written demand for the amount which the Department wishes to recover from him.

(5) Any sum which a person is required to pay to the Department under this Article shall be recoverable from him by the Department as a debt due to the Crown.

(6) The Department may by regulations make provision in relation to any case in which—

(a)one or more overpayments of child support maintenance are being reimbursed to the Department by the relevant person; and

(b)child support maintenance has continued to be payable by the [F228non-resident parent] concerned to the person with care concerned, or again becomes so payable.

[F232(7) For the purposes of this Article—

(a)a payment made by a person under a maintenance calculation which was not validly made; and

(b)a voluntary payment made in the circumstances set out in paragraph (1A)(a),

shall be treated as overpayments of child support maintenance made by a non-resident parent.]

(8) In this Article “relevant person”, in relation to an overpayment, means the person with care to whom the overpayment was made.

(9) Any sum recovered by the Department under this Article shall be paid by the Department into the Consolidated Fund.]

[F233Power to treat liability as satisfiedN.I.

38C—(1) The Department may by regulations—

(a)make provision enabling the Department in prescribed circumstances to set off liabilities to pay child support maintenance to which this Article applies;

(b)make provision enabling the Department in prescribed circumstances to set off against a person's liability to pay child support maintenance to which this Article applies a payment made by the person which is of a prescribed description.

(2) Liability to pay child support maintenance shall be treated as satisfied to the extent that it is the subject of setting off under regulations under paragraph (1).

(3) In paragraph (1), the references to child support maintenance to which this Article applies are to child support maintenance for the collection of which the Department is authorised to make arrangements.]

F233Art. 38C inserted (26.11.2009 for specified purposes, 25.1.2010 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), ss. 22, 41(1) (with s. 40(2)); S.R. 2009/380, art. 2(1)

Special casesN.I.

Special casesN.I.

39.—(1) The Department may by regulations provide that in prescribed circumstances a case is to be treated as a special case for the purposes of this Order.

(2) Those regulations may, for example, provide for the following to be special cases—

(a)each parent of a child is [F234a non-resident parent] in relation to the child;

(b)there is more than one person who is a person with care in relation to the same child;

(c)there is more than one qualifying child in relation to the same [F234non-resident parent] but the person who is the person with care in relation to one of those children is not the person who is the person with care in relation to all of them;

(d)a person is [F234a non-resident parent] in relation to more than one child and the other parent of each of those children is not the same person;

(e)the person with care has care of more than one qualifying child and there is more than one [F234non-resident parent] in relation to those children;

(f)a qualifying child has his home in two or more separate households.

(3) The Department may by regulations make provision with respect to special cases.

(4) Regulations made under paragraph (3) may, in particular—

(a)modify any provision made by or under this Order, in its application to any special case or any special case falling within a prescribed category;

(b)make new provision for any such case; or

(c)provide for any prescribed provision made by or under this Order not to apply to any such case.

[F235Recovery of child support maintenance by deduction from benefitN.I.

40.—(1) This Article applies where—

(a)a non-resident parent is liable to pay a flat rate of child support maintenance (or would be so liable but for a variation having been agreed to), and that rate applies (or would have applied) because he falls within paragraph 4(1)(b) or (c) or 4(2) of Schedule 1; and

(b)such conditions as may be prescribed for the purposes of this Article are satisfied.

(2) The power of the Department to make regulations under section 5 of the Social Security Administration (Northern Ireland) Act 1992 by virtue of subsection (1)(q) (deductions from benefits) may be exercised in relation to cases to which this Article applies with a view to securing that payments in respect of child support maintenance are made or that arrears of child support maintenance are recovered.

(3) For the purposes of this Article, the benefits to which section 5 of that Act applies shall be taken as including war disablement pensions and war widows' pensions (within the meaning of section 146(2) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (interpretation)).]

[F236Recovery of arrears from deceased's estateN.I.

40A—(1) The Department may by regulations make provision for the recovery from the estate of a deceased person of arrears of child support maintenance for which the deceased person was liable immediately before death.

(2) Regulations under paragraph (1) may, in particular—

(a)make provision for arrears of child support maintenance for which a deceased person was so liable to be a debt payable by the deceased's executor or administrator out of the deceased's estate to the Department;

(b)make provision for establishing the amount of any such arrears;

(c)make provision about procedure in relation to claims under the regulations.

(3) Regulations under paragraph (1) may include provision for proceedings (whether by appeal or otherwise) to be instituted, continued or withdrawn by the deceased's executor or administrator.]

JurisdictionN.I.

JurisdictionN.I.

41.—(1) [F237The Department] shall have jurisdiction to make a [F238maintenance calculation] with respect to a person who is—

(a)a person with care;

(b)[F239a non-resident parent]; or

(c)a qualifying child,

only if that person is habitually resident in the United Kingdom [F240, except in the case of a non-resident parent who falls within paragraph (2A)].

(2) Where the person with care is not an individual, paragraph (1) shall have effect as if sub-paragraph (a)were omitted.

[F240(2A) A non-resident parent falls within this paragraph if he is not habitually resident in the United Kingdom, but is—

(a)employed in the civil service of the Crown, including Her Majesty's Diplomatic Service and Her Majesty's Overseas Civil Service;

(b)a member of the naval, military or air forces of the Crown, including any person employed by an association established for the purposes of Part XI of the Reserve Forces Act 1996;

(c)employed by a company of a prescribed description [F241registered under the Companies Act 2006]; or

(d)employed by a body of a prescribed description.]

F242(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Jurisdiction of courts in certain proceedings under this OrderN.I.

42.—(1) The Lord Chancellor may [F243, after consultation with the Lord Chief Justice,] by order make such provision as he considers necessary to secure that appeals, or such class of appeals as may be specified in the order—

(a)shall be made to a court instead of being made to [F244an appeal tribunal]; or

(b)shall be so made in such circumstances as may be so specified.

(2) In paragraph (1) “court” means [F245, subject to any provision made under Schedule 7 to the Children (Northern Ireland) Order 1995,] the High Court, a county court or a court of summary jurisdiction.

(3) Where the effect of any order under paragraph (1) is that there are no longer any appeals which fall to be dealt with by [F244appeal tribunals], the Lord Chancellor may [F246, after consultation with the Lord Chief Justice,] by order provide for the abolition of those tribunals.

(4) Any order under paragraph (1) or (3) may make—

(a)such modifications of any provision of this Order or of any other statutory provision; and

(b)such transitional provision,

as the Lord Chancellor considers appropriate [F247, after consultation with the Lord Chief Justice,] in consequence of any provision made by the order.

[F248(5) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this Article—

(a)the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b)a Lord Justice of Appeal (as defined in section 88 of that Act).]

Miscellaneous and supplementalN.I.

Reduced benefit decisionsN.I.

F24943.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F250Finality of decisionsN.I.

43A.—(1) Subject to the provisions of this Order, any decision of the Department or an appeal tribunal made in accordance with the foregoing provisions of this Order shall be final.

(2) If and to the extent that regulations so provide, any finding of fact or other determination embodied in or necessary to such a decision, or on which such a decision is based, shall be conclusive for the purposes of—

(a)further such decisions;

(b)decisions made in accordance with Articles 9 to 16 of the Social Security (Northern Ireland) Order 1998 or section 22 of the Social Security Administration (Northern Ireland) Act 1992, or with regulations under Article 12 of that Order; and

(c)decisions made under the Vaccine Damage Payments Act 1979.]

Matters arising as respects decisionsN.I.

43B.—(1) Regulations may make provision as respects matters arising pending—

(a)any decision of the Department under Article 13, 14 or 19;

(b)any decision of an appeal tribunal under Article 22; or

(c)any decision of a Child Support Commissioner under Article 25.

(2) Regulations may also make provision as respects matters arising out of the revision under Article 18, or on appeal, of any such decision as is mentioned in paragraph (1).

F251(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

FeesN.I.

44.—(1) The Department may by regulations provide for the payment, by the [F252non-resident parent] or the person with care (or by both), of such fees as may be prescribed in cases where the Department takesF253 any action under Article 7 or 9.

(2) Regulations made under this Article—

(a)may require any information which is needed for the purpose of determining the amount of any such fee to be furnished, in accordance with the regulations, by such person as may be prescribed;

(b)shall provide that no such fees shall be payable by any person to or in respect of whom income support, [F254 an income-based jobseeker's allowance,] [F255 any element of child tax credit other than the family element, working tax credit] or any other benefit of a prescribed kind is paid; and

(c)may, in particular, make provision with respect to the recovery by the Department of any fees payable under the regulations.

[F256(3) The provisions of this Order with respect to—

(a)the collection of child support maintenance;

(b)the enforcement of any obligation to pay child support maintenance,

shall apply equally (with any necessary modifications) to fees payable by virtue of regulations made under this Article.]

F253prosp. insertion by S.I. 1995/2702 (N.I. 13)

Conduct of proceedingsN.I.

45.  Any [F257officer of the Department who is authorised] by the Department for the purposes of this Article may, although not of counsel or a solicitor, prosecute or conduct before a court of summary jurisdiction any proceedings under this Order.

Unauthorised disclosure of informationN.I.

46.—(1) Any person who is, or has been, employed in employment to which [F258this paragraph] applies is guilty of an offence if, without lawful authority, he discloses any information which—

(a)was acquired by him in the course of that employment; and

(b)relates to a particular person.

[F259(1A) Paragraph (1) applies to employment as—

(a)the Chief Child Support Officer;

(b)any other child support officer;

(c)any clerk to, or other officer of, an appeal tribunal or a child support appeal tribunal;

(d)any member of the staff of such a tribunal;

(e)a civil servant in connection with the carrying out of any functions under this Order,

and to employment of any other kind which is prescribed for the purposes of this Article.

(1B) Any person who is, or has been, employed in employment to which this paragraph applies is guilty of an offence if, without lawful authority, he discloses any information which—

(a)was acquired by him in the course of that employment;

(b)is information which is, or is derived from, information acquired or held for the purposes of this Order; and

(c)relates to a particular person.

(1C) Paragraph (1B) applies to any employment which—

(a)is not employment to which paragraph (1) applies; and

(b)is of a kind prescribed for the purposes of this paragraph.]

(2) It is not an offence under this Article—

(a)to disclose information in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it; or

(b)to disclose information which has previously been disclosed to the public with lawful authority.

(3) It is a defence for a person charged with an offence under this Article to prove that at the time of the alleged offence—

(a)he believed that he was making the disclosure in question with lawful authority and had no reasonable cause to believe otherwise; or

(b)he believed that the information in question had previously been disclosed to the public with lawful authority and had no reasonable cause to believe otherwise.

(4) A person guilty of an offence under this Article shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both; or

(b)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

F260(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) For the purposes of this Article a disclosure is to be regarded as made with lawful authority if, and only if, it is made—

(a)by a civil servant in accordance with his official duty; or

(b)by any other person either—

(i)for the purposes of the function in the exercise of which he holds the information and without contravening any restriction duly imposed by the responsible person; or

(ii)to, or in accordance with an authorisation duly given by, the responsible person;

(c)in accordance with any statutory provision or order of a court;

(d)for the purpose of instituting, or otherwise for the purposes of, any proceedings before a court or before any tribunal or other body or person mentioned in this Order; or

(e)with the consent of the appropriate person.

(7) “The responsible person” means—

(a)the Lord Chancellor;

(b)the Department;

(c)any person authorised by the Lord Chancellor, or the Department, for the purposes of this paragraph; or

(d)any other prescribed person, or person falling within a prescribed category.

(8) “The appropriate person” means the person to whom the information in question relates, except that if the affairs of that person are being dealt with—

(a)under a power of attorney;

(b)by a controller appointed under Article 101 of the Mental Health (Northern Ireland) Order 1986M9;

(c)by a mental health appointee, that is to say—

(i)a person directed or authorised as mentioned in sub-paragraph (a) of rule 38(1) of Order 109 of the Rules of the Supreme Court (Northern Ireland) 1980M10;

(ii)a controller ad interim appointed under sub-paragraph (b) of that rule;

the appropriate person is the attorney, controller or appointee (as the case may be) or, in a case falling within sub-paragraph (a), the person to whom the information relates.

Marginal Citations

Supplementary powers to make regulationsN.I.

47.—(1) The Department may by regulations make such incidental, supplemental and transitional provision as it considers appropriate in connection with any provision made by or under this Order.

(2) The regulations may, in particular, make provision—

(a)as to the procedure to be followed with respect to—

(i)the making of applications for maintenance [F261calculations];

[F262(ii)the making of decisions under Article 13;

(iii)the making of decisions under Article 18 or 19;]

[F263(b)extending the categories of case to which Article 18, 19 or 22 applies;]

(c)as to the date on which an application for a [F264maintenance calculation] is to be treated as having been made;

(d)for attributing payments made under maintenance [F265calculations] to the payment of arrears;

(e)for the adjustment, for the purpose of taking account of the retrospective effect of a [F266maintenance calculation], of amounts payable under the [F267calculation];

(f)for the adjustment, for the purpose of taking account of overpayments or under payments of child support maintenance, of amounts payable under a [F268maintenance calculation];

(g)as to the evidence which is to be required in connection with such matters as may be prescribed;

(h)as to the circumstances in which any official record or certificate is to be conclusive evidence;

(i)with respect to the giving of notices or other documents;

(j)for the rounding up or down of any amounts calculated, estimated or otherwise arrived at in applying any provision made by or under this Order.

(3) No power to make regulations conferred by any other provision of this Order shall be taken to limit the powers given to the Department by this Article.

Regulations and ordersN.I.

48.—(1) Any regulations or any order made by the Lord Chancellor under this Order (except an order made under Article 1(2)) shall be subject to [F269negative resolution].

[F270(2) A statutory rule containing (whether alone or with other provisions) regulations made under—

(a)Article 9(1), 14(4) (so far as the regulations make provision for the default rate of child support maintenance mentioned in Article 14(5)(b)), 28C(2)(b), 28F(2)(b), 30(4A), [F27132A to 32C, 32E to 32J,] 38(2), 38A, 38B(6), 40(1), 41(2A)(d) F272... or 44;

(b)paragraph 3(2) or 10A(1) of Part I of Schedule 1; or

(c)Schedule 4B,

shall be laid before the Assembly after being made and shall take effect on such date as may be specified in the regulations, but shall (without prejudice to the validity of anything done thereunder or to the making of new regulations) cease to have effect upon the expiration of a period of six months from that date unless at some time before the expiration of that period the regulations have been approved by a resolution of the Assembly.

(2A) A statutory rule containing (whether alone or with other provisions) the first set of regulations made under paragraph 10(1) of Part I of Schedule 1 (as substituted by section 1(3) of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000) shall be laid before the Assembly after being made and shall take effect on such date as may be specified in the regulations, but shall (without prejudice to the validity of anything done thereunder or to the making of new regulations) cease to have effect upon the expiration of a period of six months from that date unless at some time before the expiration of that period the regulations have been approved by a resolution of the Assembly.]

(3) The following statutory rules—

(a)any regulations made by the Department under this Order (except regulations to which paragraph (2) [F273or (2A)] applies); and

(b)any order made by the Department under this Order (except an order made under Article 1(2));

shall be subject to negative resolution.

(4) Any power to make a statutory rule shall be exercisable so to provide for a person to exercise a discretion in dealing with any matter.

F271Words in art. 48(2)(a) inserted (1.6.2009 for specified purposes, 3.8.2009 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), s. 41(1), Sch. 4 para. 1(20)(a) (with s. 37); S.R. 2009/216, art. 2(1)(d)

Modifications etc. (not altering text)

Co-ordination with Great BritainN.I.

49.—(1) The Department may make arrangements with the Secretary of State with a view to securing, to the extent allowed for in the arrangements, that—

(a)the provision made by or under this Order ( “the provision made for Northern Ireland”); and

(b)the provision made by or under the Child Support Act 1991F274 ( “the provision made for Great Britain”),

provide for a single system within the United Kingdom.

Paras. (2), (3) rep. by 1998 c. 47

Application to CrownN.I.

50.—(1) The power of the Department to make regulations under Article 16 requiring prescribed persons to furnish information may be exercised so as to require information to be furnished by persons employed in the service of the Crown or otherwise in the discharge of Crown functions.

(2) In such circumstances, and subject to such conditions, as may be prescribed, an inspector appointed under Article 17 may enter any Crown premises for the purpose of exercising any powers conferred on him by that Article.

(3) Where such an inspector duly enters any Crown premises for those purposes, Article 17 shall apply in relation to persons employed in the service of the Crown or otherwise in the discharge of Crown functions as it applies in relation to other persons.

(4) Where a liable person is in the employment of the Crown, a deduction from earnings order may be made under Article 31 in relation to that person; but in such a case paragraph (8) of Article 32 shall apply only in relation to the failure of that person to comply with any requirement imposed on him by regulations made under Article 32.

Amendments, etc.N.I.

51.—(1) The Lord Chancellor or the Department may by order make such amendments or repeals in, or such modifications of, such statutory provisions as may be specified in the order, as appear to the Lord Chancellor or the Department to be necessary or expedient in consequence of any provision made by or under this Order (including any provision made by virtue of Article 1(3)).

(2) Until Schedule 1 to the Disability Living Allowance and Disability Working Allowance (Northern Ireland) Order 1991F275 comes into operation, paragraph 1(1) of Schedule 3 shall have effect with the omission of “and disability appeal tribunals” and the insertion, after “social security appeal tribunals”, of “ and ”.

Para. (3)—Amendments

SCHEDULES

Article 13.

SCHEDULE 1N.I.MAINTENANCE [F276CALCULATIONS]

F276Word in Sch. 1 heading substituted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), ss. 1(2)(b), 68(2); S.R. 2003/53, art. 3(1), Sch.

[F277PART IN.I.CALCULATION OF WEEKLY AMOUNT OF CHILD SUPPORT MAINTENANCE

Modifications etc. (not altering text)

C15Sch. 1 para. 5 (as originally enacted) amended (1.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Welfare Reform Act (Northern Ireland) 2007 (c. 2), s. 60(1), Sch. 3 para. 2(8); S.R. 2008/276, art. 2(2)(c), Sch. Pt. 1

General ruleN.I.

1.—(1) The weekly rate of child support maintenance is the basic rate unless a reduced rate, a flat rate or the nil rate applies.N.I.

(2) Unless the nil rate applies, the amount payable weekly to a person with care is—

(a)the applicable rate, if paragraph 6 does not apply; or

(b)if paragraph 6 does apply, that rate as apportioned between the persons with care in accordance with paragraph 6,

as adjusted, in either case, by applying the rules about shared care in paragraph 7 or 8.

Basic rateN.I.

2.—(1) The basic rate is the following percentage of the non-resident parent's net weekly income—N.I.

  • 15 per cent. where he has one qualifying child;

  • 20 per cent. where he has two qualifying children;

  • 25 per cent. where he has three or more qualifying children.

(2) If the non-resident parent also has one or more relevant other children, the appropriate percentage referred to in sub-paragraph (1) is to be applied instead to his net weekly income less—

  • 15 per cent. where he has one relevant other child;

  • 20 per cent. where he has two relevant other children;

  • 25 per cent. where he has three or more relevant other children.

Reduced rateN.I.

3.—(1) A reduced rate is payable if—N.I.

(a)neither a flat rate nor the nil rate applies; and

(b)the non-resident parent’s net weekly income is less than £200 but more than £100.

(2) The reduced rate payable shall be prescribed in, or determined in accordance with, regulations.

(3) The regulations may not prescribe, or result in, a rate of less than £5.

Flat rateN.I.

4.—(1) Except in a case falling within sub-paragraph (2), a flat rate of £5 is payable if the nil rate does not apply and—N.I.

(a)the non-resident parent’s net weekly income is £100 or less; or

(b)he receives any benefit, pension or allowance prescribed for the purposes of this head; or

(c)he or his partner (if any) receives any benefit prescribed for the purposes of this head.

(2) A flat rate of a prescribed amount is payable if the nil rate does not apply and—

(a)the non-resident parent has a partner who is also a non-resident parent;

(b)the partner is a person with respect to whom a maintenance calculation is in force; and

(c)the non-resident parent or his partner receives any benefit prescribed under sub-paragraph (1)(c).

(3) The benefits, pensions and allowances which may be prescribed for the purposes of sub-paragraph (1)(b) include those paid to the non-resident parent under the law of a place outside the United Kingdom.

Nil rateN.I.

5.  The rate payable is nil if the non-resident parent—N.I.

(a)is of a prescribed description; or

(b)has a net weekly income of below £5.

ApportionmentN.I.

6.—(1) If the non-resident parent has more than one qualifying child and in relation to them there is more than one person with care, the amount of child support maintenance payable is (subject to paragraph 7 or 8) to be determined by apportioning the rate between the persons with care.N.I.

(2) The rate of maintenance liability is to be divided by the number of qualifying children, and shared among the persons with care according to the number of qualifying children in relation to whom each is a person with care.

Shared care - basic and reduced rateN.I.

7.—(1) This paragraph applies only if the rate of child support maintenance payable is the basic rate or a reduced rate.N.I.

(2) If the care of a qualifying child is shared between the non-resident parent and the person with care, so that the non-resident parent from time to time has care of the child overnight, the amount of child support maintenance which he would otherwise have been liable to pay the person with care, as calculated in accordance with the preceding paragraphs, is to be decreased in accordance with this paragraph.

(3) First, there is to be a decrease according to the number of such nights which the Department determines there to have been, or expects there to be, or both during a prescribed twelve-month period.

(4) The amount of that decrease for one child is set out in the following Table—

Number of nightsFraction to subtract
52 to 103One-seventh
104 to 155Two-sevenths
156 to 174Three-sevenths
175 or moreOne-half

(5) If the person with care is caring for more than one qualifying child of the non-resident parent, the applicable decrease is the sum of the appropriate fractions in the Table divided by the number of such qualifying children.

(6) If the applicable fraction is one-half in relation to any qualifying child in the care of the person with care, the total amount payable to the person with care is then to be further decreased by £7 for each such child.

(7) If the application of the preceding provisions of this paragraph would decrease the weekly amount of child support maintenance (or the aggregate of all such amounts) payable by the non-resident parent to the person with care (or all of them) to less than £5, he is instead liable to pay child support maintenance at the rate of £5 a week, apportioned (if appropriate) in accordance with paragraph 6.

Shared care - flat rateN.I.

8.—(1) This paragraph applies only if—N.I.

(a)the rate of child support maintenance payable is a flat rate; and

(b)that rate applies because the non-resident parent falls within paragraph 4(1)(b) or (c) or 4(2).

(2) If the care of a qualifying child is shared as mentioned in paragraph 7(2) for at least 52 nights during a prescribed twelve-month period, the amount of child support maintenance payable by the non-resident parent to the person with care of that child is nil.

Regulations about shared careN.I.

9.  The Department may by regulations provide for—N.I.

(a)which nights are to count for the purposes of shared care under paragraphs 7 and 8, or for how it shall be determined whether a night counts;

(b)what counts, or does not count, as “care” for those purposes; and

(c)paragraph 7(3) or 8(2) to have effect, in prescribed circumstances, as if the period mentioned there were other than twelve months, and in such circumstances for the Table in paragraph 7(4) (or that Table as modified pursuant to regulations made under paragraph 10A(2)(a)), or the period mentioned in paragraph 8(2), to have effect with prescribed adjustments.

Net weekly incomeN.I.

10.—(1) For the purposes of this Schedule, net weekly income shall be determined in such manner as is provided for by regulations.N.I.

(2) The regulations may, in particular, provide for the Department to estimate any income or make an assumption as to any fact where, in the Department’s view, the information at its disposal is unreliable, insufficient or relates to an atypical period in the life of the non-resident parent.

(3) Any amount of net weekly income (calculated as above) over £2,000 is to be ignored for the purposes of this Schedule.

Regulations about rates, figures, etc.N.I.

10A.—(1) The Department may by regulations provide that—N.I.

(a)paragraph 2 is to have effect as if different percentages were substituted for those set out there;

(b)paragraph 3(1) or (3), 4(1), 5, 7(7) or 10(3) is to have effect as if different amounts were substituted for those set out there.

(2) The Department may by regulations provide that—

(a)the Table in paragraph 7(4) is to have effect as if different numbers of nights were set out in the first column and different fractions were substituted for those set out in the second column;

(b)paragraph 7(6) is to have effect as if a different amount were substituted for that set out there, or as if the amount were an aggregate amount and not an amount for each qualifying child, or both.

Regulations about incomeN.I.

10B.  The Department may by regulations provide that, in such circumstances and to such extent as may be prescribed—N.I.

(a)where the Department is satisfied that a person has intentionally deprived himself of a source of income with a view to reducing the amount of his net weekly income, his net weekly income shall be taken to include income from that source of an amount estimated by the Department;

(b)a person is to be treated as possessing income which he does not possess;

(c)income which a person does possess is to be disregarded.

References to various termsN.I.

10C.—(1) References in this Part to “qualifying children” are to those qualifying children with respect to whom the maintenance calculation falls to be made.N.I.

(2) References in this Part to “relevant other children” are to—

(a)children other than qualifying children in respect of whom the non-resident parent or his partner receives child benefit under Part IX of the Social Security Contributions and Benefits (Northern Ireland) Act 1992; and

(b)such other description of children as may be prescribed.

(3) In this Part, a person “receives” a benefit, pension or allowance for any week if it is paid or due to be paid to him in respect of that week.

(4) In this Part, a person’s “partner” is—

(a)if they are a couple, the other member of that couple;

(b)if the person is a husband or wife by virtue of a marriage entered into under a law which permits polygamy, another party to the marriage who is of the opposite sex and is a member of the same household.

[F278(5) In sub-paragraph (4)(a), “couple” means—

(a)a man and a woman who are married to each other and are members of the same household,

(b)a man and a woman who are not married to each other but are living together as husband and wife,

(c)two people of the same sex who are civil partners of each other and are members of the same household, or

(d)two people of the same sex who are not civil partners of each other but are living together as if they were civil partners.

(6) For the purposes of this paragraph, two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex.]]

PART IIN.I.GENERAL PROVISIONS ABOUT MAINTENANCE [F279CALCULATIONS]

Effective date of [F280calculation]N.I.

11.—(1) A [F281maintenance calculation] shall take effect on such date as may be determined in accordance with regulations made by the Department.N.I.

(2) That date may be earlier than the date on which the [F282calculation] is made.

Form of [F283calculation]N.I.

12.  Every [F284maintenance calculation] shall be made in such form and contain such information as the Department may direct.N.I.

[F285Calculations] where amount of child support is nilN.I.

F28613.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.I.

Consolidated applications and [F287calculations]N.I.

[F28814.  The Department may by regulations provide—N.I.

(a)for 2 or more applications for maintenance calculations to be treated, in prescribed circumstances, as a single application; and

(b)for the replacement, in prescribed circumstances, of a maintenance calculation made on the application of one person by a later maintenance calculation made on the application of that or any other person.]

Separate [F289calculations] for different periodsN.I.

15.  Where [F290the Department] is satisfied that the circumstances of a case require different amounts of child support maintenance to be [F291calculated] in respect of different periods, [F290it] may make separate maintenance [F292calculations] each expressed to have effect in relation to a different specified period.N.I.

Termination of [F293calculations]N.I.

16.—(1) A [F294maintenance calculation] shall cease to have effect—N.I.

(a)on the death of the [F295non-resident parent], or of the person with care, with respect to whom it was made;

(b)on there no longer being any qualifying child with respect to whom it would have effect;

(c)on the [F295non-resident parent] with respect to whom it was made ceasing to be a parent of—

(i)the qualifying child with respect to whom it was made; or

(ii)where it was made with respect to more than one qualifying child, all of the qualifying children with respect to whom it was made;

F296(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F296(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F297(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F298(11) A person with care with respect to whom a [F299maintenance calculation] is in force shall provide the Department with such information, in such circumstances, as may be prescribed, with a view to assisting the Department in determining whether the [F300calculation] has ceased to have effect F301....

(12) The Department may by regulations make such supplemental, incidental or transitional provision as it thinks necessary or expedient in consequence of the provisions of this paragraph.]

Modifications etc. (not altering text)

C16Sch. 1 para. 16(3) (as originally enacted) repealed (14.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), s. 41(1), Sch. 4 para. 1(29)(b) (with s. 37); S.R. 2008/291, art. 2(2)(b) (with art. 2(3)(4)); S.R. 2008/419, art. 2

C17Sch. 1 para. 16(5)(b) (as originally enacted) repealed (14.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), s. 41(1), Sch. 4 para. 1(29)(b) (with s. 37); S.R. 2008/291, art. 2(2)(b) (with art. 2(3)(4)); S.R. 2008/419, art. 2

F302SCHEDULES 2, 3N.I.

F302Schedules 2 and 3 rep. by S.I. 1998/1506 (N.I. 10)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Article 24.

SCHEDULE 4N.I.MATTERS CONCERNING CHILD SUPPORT COMMISSIONERS

Proceedings before Child Support CommissionersN.I.

1.—(1) The Lord Chancellor may make such regulations with respect to proceedings before Child Support Commissioners as he considers appropriate.N.I.

(2) The regulations—

(a)may, in particular, make any provision of a kind mentioned in[F303 Schedule 4 to the Social Security (Northern Ireland) Order 1998]; and

(b)shall provide that any hearing before a Child Support Commissioner shall be in public except in so far as the Commissioner for special reasons directs otherwise.

[F304Determination of questions by other officersN.I.

1A.—(1) The Lord Chancellor may by regulations provide—N.I.

(a)for officers authorised by him to determine any question which is determinable by a Child Support Commissioner and which does not involve the determination of any appeal, application for leave to appeal or reference;

(b)for the procedure to be followed by any such officer in determining any such question;

(c)for the manner in which determinations of such questions by such officers may be called in question.

(2) A determination which would have the effect of preventing an appeal, application for leave to appeal or reference being determined by a Child Support Commissioner is not a determination of the appeal, application or reference for the purposes of sub-paragraph (1).]

[F305Tribunal of CommissionersN.I.

2.—(1) If it appears to the Chief Child Support Commissioner (or, in the case of his inability to act, to such other of the Child Support Commissioners as he may have nominated to act for the purpose) that—N.I.

(a)an application for leave under Article 25(6)(b); or

(b)an appeal,

falling to be heard by one of the Child Support Commissioners involves a question of law of special difficulty, he may direct that the application or appeal be dealt with, not by that Commissioner alone, but by a tribunal consisting of any 2 or more of the Child Support Commissioners.

(2) If the decision of such a tribunal is not unanimous, the decision of the majority shall be the decision of the tribunal; and the presiding Child Support Commissioner shall have a casting vote if the votes are equally divided.

(3) Where a direction is given under sub-paragraph (1)(a), Article 25(6)(b) shall have effect as if the reference to a Child Support Commissioner were a reference to such a tribunal as is mentioned in sub-paragraph (1).]

Finality of decisionsN.I.

3.—(1) Subject to Article 26 the decision of any Child Support Commissioner shall be final.N.I.

[F306(2) If and to the extent that regulations so provide, any finding of fact or other determination which is embodied in or necessary to a decision, or on which a decision is based, shall be conclusive for the purposes of any further decision.]

[F307Expenses of persons required to attend proceedingsN.I.

3A.—[F308(1) The Lord Chancellor may pay to any person who attends any proceedings before a Child Support Commissioner such travelling and other allowances as he may determine.]N.I.

(2) In sub-paragraph (1), references to travelling and other allowances include references to compensation for loss of remunerative time.

(3) No compensation for loss of remunerative time shall be paid to any person under this paragraph in respect of any time during which he is in receipt of other remuneration so paid.]

PensionsN.I.

4.  The [F309Department of Justice shall] pay, or make such payments towards the provision of, such pensions to or in respect of persons appointed as Child Support Commissioners [F310as the Lord Chancellor may], with the consent of the Treasury, determine.N.I.

[F311SCHEDULE 4AN.I.APPLICATIONS FOR A VARIATION

InterpretationN.I.

1.  In this Schedule, “regulations” means regulations made by the Department.N.I.

Applications for a variationN.I.

2.  Regulations may make provision as to the procedure to be followed—N.I.

(a)in considering an application for a variation;

(b)when an application for a variation is referred to an appeal tribunal under Article 28D(1)(b).

Completion of preliminary considerationN.I.

3.  Regulations may provide for determining when the preliminary consideration of an application for a variation shall be taken to have been completed.N.I.

InformationN.I.

4.  If any information which is required (by regulations under this Order) to be furnished to the Department in connection with an application for a variation has not been furnished within such period as may be prescribed, the Department may nevertheless proceed to consider the application.N.I.

Joint consideration of applications for a variation and appealsN.I.

5.—(1) Regulations may provide for two or more applications for a variation with respect to the same application for a maintenance calculation to be considered together.N.I.

F312(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) An appeal tribunal considering an application for a variation under Article 28D(1)(b) may consider it at the same time as an appeal under Article 22 in connection with an interim maintenance decision, if it considers that to be appropriate.]

[F313SCHEDULE 4BN.I.APPLICATIONS FOR A VARIATION: THE CASES AND CONTROLS

PART IN.I.THE CASES

GeneralN.I.

1.—(1) The cases in which a variation may be agreed are those set out in this Part or in regulations made under this Part.N.I.

(2) In this Schedule “applicant” means the person whose application for a variation is being considered.

Special expensesN.I.

2.—(1) A variation applied for by a non-resident parent may be agreed with respect to his special expenses.N.I.

(2) In this paragraph “special expenses” means the whole, or any amount above a prescribed amount, or any prescribed part, of expenses which fall within a prescribed description of expenses.

(3) In prescribing descriptions of expenses for the purposes of this paragraph, the Department may, in particular, make provision with respect to—

(a)costs incurred by a non-resident parent in maintaining contact with the child, or with any of the children, with respect to whom the application for a maintenance calculation has been made F314...;

(b)costs attributable to a long-term illness or disability of a relevant other child (within the meaning of paragraph 10C(2) of Schedule 1);

(c)debts of a prescribed description incurred, before the non-resident parent became a non-resident parent in relation to a child with respect to whom the maintenance calculation has been applied for F315...—

(i)for the joint benefit of both parents;

(ii)for the benefit of any such child; or

(iii)for the benefit of any other child falling within a prescribed category;

(d)boarding school fees for a child in relation to whom the application for a maintenance calculation has been made F316...;

(e)the cost to the non-resident parent of making payments in relation to a mortgage on the home he and the person with care shared, if he no longer has an interest in it, and the person with care and a child in relation to whom the application for a maintenance calculation has been made F317... still live there.

(4) For the purposes of sub-paragraph (3)(b)—

(a)“disability” and “illness” have such meaning as may be prescribed; and

(b)the question whether an illness or disability is long-term shall be determined in accordance with regulations made by the Department.

(5) For the purposes of sub-paragraph (3)(d), the Department may prescribe—

(a)the meaning of “boarding school fees”; and

(b)components of such fees (whether or not itemised as such) which are, or are not, to be taken into account,

and may provide for estimating any such component.

Property or capital transfersN.I.

3.—(1) A variation may be agreed in the circumstances set out in sub-paragraph (2) if before 5th April 1993—N.I.

(a)a court order of a prescribed kind was in force with respect to the non-resident parent and either the person with care with respect to the application for the maintenance calculation or the child, or any of the children, with respect to whom that application was made; or

(b)an agreement of a prescribed kind between the non-resident parent and any of those persons was in force.

(2) The circumstances are that in consequence of one or more transfers of property of a prescribed kind and exceeding (singly or in aggregate) a prescribed minimum value—

(a)the amount payable by the non-resident parent by way of maintenance was less than would have been the case had that transfer or those transfers not been made; or

(b)no amount was payable by the non-resident parent by way of maintenance.

(3) For the purposes of sub-paragraph (2), “maintenance” means periodical payments of maintenance made (otherwise than under this Order) with respect to the child, or any of the children, with respect to whom the application for a maintenance calculation has been made.

Additional casesN.I.

4.—(1) The Department may by regulations prescribe other cases in which a variation may be agreed.N.I.

(2) Regulations under this paragraph may, for example, make provision with respect to cases where—

(a)the non-resident parent has assets which exceed a prescribed value;

(b)a person’s lifestyle is inconsistent with his income for the purposes of a calculation made under Part I of Schedule 1;

(c)a person has income which is not taken into account in such a calculation;

(d)a person has unreasonably reduced the income which is taken into account in such a calculation.

PART IIN.I.REGULATORY CONTROLS

5.—(1) The Department may by regulations make provision with respect to the variations from the usual rules for calculating maintenance which may be allowed when a variation is agreed.N.I.

(2) No variations may be made other than those which are permitted by the regulations.

(3) Regulations under this paragraph may, in particular, make provision for a variation to result in—

(a)a person being treated as having more, or less, income than would be taken into account without the variation in a calculation under Part I of Schedule 1;

(b)a person being treated as liable to pay a higher, or a lower, amount of child support maintenance than would result without the variation from a calculation under that Part.

(4) Regulations may provide for the amount of any special expenses to be taken into account in a case falling within paragraph 2, for the purposes of a variation, not to exceed such amount as may be prescribed or as may be determined in accordance with the regulations.

(5) Any regulations under this paragraph may in particular make different provision with respect to different levels of income.

6.  The Department may by regulations provide for the application, in connection with child support maintenance payable following a variation, of paragraph 7(2) to (7) of Schedule 1 (subject to any prescribed modifications).]N.I.

F318F319SCHEDULE 4CN.I.DECISIONS AND APPEALS: DEPARTURE DIRECTIONS AND REDUCED BENEFIT DIRECTIONS, ETC.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modifications etc. (not altering text)

C18Sch. 4C (as originally enacted) amended (14.7.2008 for specified purposes, 27.10.2008 in so far as not already in operation) by Child Maintenance Act (Northern Ireland) 2008 (c. 10), s. 41(1), Sch. 4 para. 1(29)(c)(i) (with s. 37); S.R. 2008/291, art. 2(2)(b) (with art. 2(3)(4)); S.R. 2008/419, art. 2

Article 51(3).

SCHEDULE 5N.I.CONSEQUENTIAL AMENDMENTS

The Northern Ireland Assembly Disqualification Act 1975 (c. 25)N.I.

F3201.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.I.

The Insolvency (Northern Ireland) Order 1989 (NI 19)N.I.

2.  In Article 255(5)(b) of the Insolvency (Northern Ireland) Order 1989 (effect of discharge of bankrupt), “after domestic proceedings” insert “or under a maintenance assessment made under the Child Support (Northern Ireland) Order 1991”.N.I.

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