Child Support Act 1991
1991 c. 48
An Act to make provision for the F153calculation, collection and enforcement of periodical maintenance payable by certain parents with respect to children of theirs who are not in their care; for the collection and enforcement of certain other kinds of maintenance; and for connected purposes.
Word in Act substituted (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 1(2)(b), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2003/192, art. 3, Sch.
Act applied (18.6.1992) by The Child Support (Northern Ireland) Order 1991 (S.I. 1991/2628), arts. 16(4), 49, Sch. 2; S.R. 1992/278, art.2, Sch.
Act applied (4.9.1995) by Child Support Act 1995 (c. 34), s. 27; S.I. 1995/2302, art. 2, Sch. Pt. 1
Act: definition of "maintenance assessment" extended (7.10.1996) by The Jobseeker’s Allowance Regulations 1996 (S.I. 1996/207), reg. 125
Act modified (8.9.1998) by Social Security Act 1998 (c. 14), ss. 2(2)(d), 87(2); S.I. 1998/2209, art. 2, Sch. Pt. 1
Act: power to amend conferred (2.12.1999) by Northern Ireland Act 1998 (c. 47), s. 87(4)-(6) (with s. 95, Sch. 14); S.I. 1999/3209, art. 2, Sch.
Act: power to modify conferred (10.6.2008) by Child Maintenance and Other Payments Act 2008 (c. 6), ss. 59(2), 62(3); S.I. 2008/1476, art. 2(6)
Act modified (temp.) (10.6.2008) by Child Maintenance and Other Payments Act 2008 (c. 6), ss. 59(1), 62(3); S.I. 2008/1476, art. 2(6)
Act power to apply (with modifications) conferred (24.7.2008) by Child Maintenance and Other Payments Act 2008 (c. 6), ss. 6(4), 62(3); S.I. 2008/2033, art. 2(1)
Act functions transferred (1.11.2008 for specified purposes) by Child Maintenance and Other Payments Act 2008 (c. 6), ss. 13, 62(3) (with Sch. 3 Pt. 2); S.I. 2008/2675, art. 3(b) (with art. 4)
The basic principles
C21 The duty to maintain.
1
For the purposes of this Act, each parent of a qualifying child is responsible for maintaining him.
2
For the purposes of this Act, F88a 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 Act.
3
C32 Welfare of children: the general principle.
I13 Meaning of certain terms used in this Act.
1
A child is a “qualifying child” if—
a
one of his parents is, in relation to him, F88a non-resident parent; or
b
both of his parents are, in relation to him, F88non-resident parents.
2
The parent of any child is F88a “non-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;
C56C57b
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 Secretary of State shall not, under subsection (3)(c), prescribe as a category—
a
parents;
b
guardians;
c
persons in whose favour residence orders under section 8 of the M1Children Act 1989 are in force;
d
in Scotland, persons F27with whom a child is to live by virtue of a residence order under section 11 of the Children (Scotland) Act 1995.
5
For the purposes of this Act 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 F152maintenance calculation are referred to in this Act as “child support maintenance”.
7
Expressions are defined in this section only for the purposes of this Act.
I24 Child support maintenance.
1
2
Where a F152maintenance calculation has been made in response to an application under this section the F224Commission may, if the person with care or F88non-resident parent with respect to whom the F153calculation was made applies to F225it under this subsection, arrange for—
a
the collection of the child support maintenance payable in accordance with the F153calculation;
b
the enforcement of the obligation to pay child support maintenance in accordance with the F153calculation.
3
4
A person who applies to the F226Commission under this section shall, so far as that person reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the F226CommissionF44... being provided with the information which is required to enable—
b
the amount of child support maintenance payable by the F88non-resident parent to be assessed; and
c
that amount to be recovered from the F88non-resident parent.
5
C46
It shall be the duty of the F231Commission to comply with any request made under subsection (5) (but subject to any regulations made under subsection (8)).
7
The obligation to provide information which is imposed by subsection (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 F232Commission.
8
The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.
F1969
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C32F810
No application may be made at any time under this section with respect to a qualifying child or any qualifying children if—
a
F111aa
a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made; or
F175ab
a maintenance agreement—
i
made on or after the date prescribed for the purposes of paragraph (a); and
ii
registered for execution in the Books of Council and Session or the sheriff court books,
is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made;F191...
F191b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F19711
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I35 Child support maintenance: supplemental provisions.
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 F28... the child;
2
Where more than one application for a F152maintenance calculation is made with respect to the child concerned, only one of them may be proceeded with.
3
The Secretary of State may by regulations make provision as to which of two or more applications for a F152maintenance calculation with respect to the same child is to be proceeded with.
F1926 Applications by those claiming or receiving benefit.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I47 Right of child in Scotland to apply for F153calculation.
1
A qualifying child who has attained the age of 12 years and who is habitually resident in Scotland may apply to the F269Commission for a F152maintenance calculation to be made with respect to him if—
a
F178b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
3
Where a F152maintenance calculation has been made in response to an application under this section the F271Commission may, if the person with care, the F88non-resident parent with respect to whom the F153calculation was made or the child concerned applies to F272it under this subsection, arrange for—
a
the collection of the child support maintenance payable in accordance with the F153calculation;
b
the enforcement of the obligation to pay child support maintenance in accordance with the F153calculation.
4
5
Where a child has asked the F275Commission to proceed under this section, the person with care of the child, the F88non-resident parent and the child concerned shall, so far as they reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the F275CommissionF45... being provided with the information which is required to enable—
a
the F88non-resident parent to be traced (where that is necessary);
b
the amount of child support maintenance payable by the F88non-resident parent to be assessed; and
c
that amount to be recovered from the F88non-resident parent.
6
The child who has made the application (but not the person having care of him) may at any time request the F276Commission to cease acting under this section.
7
It shall be the duty of the F277Commission to comply with any request made under subsection (6) (but subject to any regulations made under subsection (9)).
8
The obligation to provide information which is imposed by subsection (5)—
a
shall not apply in such circumstances as may be prescribed by the Secretary of State; and
b
may, in such circumstances as may be so prescribed, be waived by the F278Commission.
9
The Secretary of State may by regulations make such incidental, supplemental or transitional provision as he thinks appropriate with respect to cases in which he is requested to cease to act under this section.
C33F910
No application may be made at any time under this section by a qualifying child if
F89a
b
a maintenance order made on or after the date prescribed for the purposes of paragraph (a) is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was madeF176; or
c
a maintenance agreement—
i
made on or after the date prescribed for the purposes of paragraph (a); and
ii
registered for execution in the Books of Council and Session or the sheriff court books,
is in force in respect of them, but has been so for less than the period of one year beginning with the date on which it was made.
I5C5C6C358 Role of the courts with respect to maintenance for children.
1
This subsection applies in any case where F46the F233Commission would have jurisdiction to make a F152maintenance calculation with respect to a qualifying child and F88a non-resident parent of his on an application duly made F199... by a person entitled to apply for such F153a calculation with respect to that child.
2
C7C8C293
F1153A
Unless a maintenance calculation has been made with respect to the child concerned, subsection (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 section 4(10)(a) or 7(10)(a); or
b
where the order was made before then, in any case in which section 4(10) or 7(10) prevents the making of an application for a maintenance calculation with respect to or by that child.
4
Subsection (3) does not prevent a court from revoking a maintenance order.
5
The Lord Chancellor or in relation to Scotland the Lord Advocate may by order provide that, in such circumstances as may be specified by the order, this section 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 F88a 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.
F1665A
The Lord Chancellor may make an order under subsection (5) only with the concurrence of the Lord Chief Justice.
6
This section 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 F152maintenance calculation is in force with respect to the child;
F116b
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
7
This section 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 section 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 subsection (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 section 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 Act “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—
a
Part II of the M2Matrimonial Causes Act 1973;
b
the M3Domestic Proceedings and Magistrates’ Courts Act 1978;
c
Part III of the M4Matrimonial and Family Proceedings Act 1984;
d
the M5Family Law (Scotland) Act 1985;
F157ea
Schedule 5, 6 or 7 to the Civil Partnership Act 2004; or
f
any other prescribed enactment,
and includes any order varying or reviving such an order.
F16712
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
C99 Agreements about maintenance.
1
In this section “maintenance agreement” means any agreement for the making, or for securing the making, of periodical payments by way of maintenance, or in Scotland aliment, to or for the benefit of any child.
2
Nothing in this Act shall be taken to prevent any person from entering into a maintenance agreement.
C103
F10Subject to section 4(10)(a) F177and (ab) and section 7(10), the existence of a maintenance agreement shall not prevent any party to the agreement, or any other person, from applying for a F152maintenance 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 F152maintenance calculation, that provision shall be void.
C115
Where section 8 would prevent any court from making a maintenance order in relation to a child and F88a 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 F88non-resident parent to make or secure the making of periodical payments by way of maintenance, or in Scotland aliment, to or for the benefit of that child; or
F116
C1310 Relationship between maintenance F153calculations and certain court orders and related matters.
1
Where an order of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a F152maintenance 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 Secretary of State; 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 subsection is in force with respect to any qualifying child with respect to whom a F152maintenance 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 Secretary of State; 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 section 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 subsection (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 F152maintenance calculation and of the provisions of this Act;
b
the recovery of any arrears under the order or agreement which fell due before the coming into force of the F152maintenance calculation,
as the Secretary of State 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 Secretary of State may by regulations make provision for—
a
5
Rules may be made under section 144 of the M7Magistrates’ Courts Act 1980 (rules of procedure) requiring any person who, in prescribed circumstances, makes an application to a magistrates’ court for a maintenance order to furnish the court with a statement in a prescribed form, and signed by F48an officer of the F281Commission, as to whether or not, at the time when the statement is made, there is a F152maintenance calculation in force with respect to that person or the child concerned.
In this subsection—
“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 F153calculations
F11711C69 Maintenance calculations.
1
2
F2013
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2014
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2015
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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
8
Part II of Schedule 1 makes further provision with respect to maintenance calculations.
12F91 Default and interim maintenance decisions.
1
Where the F240Commission—
a
is required to make a maintenance calculation; or
b
is proposing to make a decision under section 16 or 17,
2
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 Secretary of State 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 officers
F4913 Child support officers.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Information
I614 Information required by F244Commission.
1
The Secretary of State may make regulations requiring any information or evidence needed for the determination of any application F118madeF203... under this Act, or any question arising in connection with such an application F203... F189, or needed for the making of any decision or in connection with the imposition of any condition or requirement under this Act, or needed in connection with the collection or enforcement of child support or other maintenance under this Act, to be furnished—
a
by such persons as may be determined in accordance with regulations made by the Secretary of State; and
b
in accordance with the regulations.
F261A
Regulations under subsection (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.
F352
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F352A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
4
The provisions of Schedule 2 (which relate to information which is held for purposes other than those of this Act but which is required by the F246Commission) shall have effect.
14AF65Information—offences.
1
This section applies to—
a
persons who are required to comply with regulations under section 4(4) or 7(5); and
b
persons specified in regulations under section 14(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.
F1933A
In the case of regulations under section 14 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 subsection (3) F194or (3A) to prove that he had a reasonable excuse for failing to comply.
5
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
C1415 Powers of inspectors.
F661
2
The function of inspectors is to acquire information which the F284Commission needs for any of the purposes of this Act.
3
Every inspector is to be given a certificate of his appointment.
4
An inspector has 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 section; and
b
are premises to which it is reasonable for him to require entry in order that he may exercise his functions under this section,
and may there make such examination and inquiry as he considers appropriate.
4A
Premises liable to inspection under this section 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, F67any such person shall furnish to the inspector all such information and documents as the inspector may reasonably require.
7
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 section,
he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
10
F6811
In this section, “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 section to the occupier of premises are to 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 appeals
C5116F36Revision of decisions
1
a
either within the prescribed period or in prescribed cases or circumstances; and
b
either on an application made for the purpose or on F286its own initiative;
and regulations may prescribe the procedure by which a decision of the F285Commission may be so revised.
F1201A
This subsection applies to—
a
a decision of the F285Commission under section 11, 12 or 17;
F179b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
a decision of F382the First-tier Tribunal on a referral under section 28D(1)(b).
1B
Where the F285Commission revises a decision under section 12(1)—
2
3
Subject to subsections (4) and (5) and section 28ZC, a revision under this section 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 section shall take effect as from such other date as may be prescribed.
5
Where a decision is revised under this section, 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 F285Commission shall lapse if the decision is revised under this section before the appeal is determined.
17F38Decisions superseding earlier decisions
1
Subject to subsection (2), the following, namely—
a
any decision of the F289Commission under section 11 or 12 or this section, whether as originally made or as revised under section 16;
F180c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
any decision of F385the Upper Tribunal on an appeal from such a decision as is mentioned in paragraph (b) or (d),
2
3
Regulations may prescribe the cases and circumstances in which, and the procedure by which, a decision may be made under this section.
F924
Subject to subsection (5) and section 28ZC, a decision under this section 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 subsection (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 the effective date of the first decision made by the F289Commission under section 11 or (if earlier) F290its first default or interim maintenance decision (under section 12) in relation to the non-resident parent in question, and each subsequent one beginning on the day after the last day of the previous one.
5
Regulations may provide that, in prescribed cases or circumstances, a decision under this section shall take effect as from such other date as may be prescribed.
F3818 Reviews of decisions of child support officers.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3819 Reviews at instigation of child support officers.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C81C49C5220F93 Appeals to F386First-tier Tribunal.
1
A qualifying person has a right of appeal to F387the First-tier Tribunal against—
a
a decision of the F292Commission under section 11, 12 or 17 (whether as originally made or as revised under section 16);
b
a decision of the F293Commission not to make a maintenance calculation under section 11 or not to supersede a decision under section 17;
F181c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
the imposition (by virtue of section 41A) of a requirement to make penalty payments, or their amount;
e
the imposition (by virtue of section 47) of a requirement to pay fees.
2
In subsection (1), “qualifying person” means—
a
in relation to paragraphs (a) and (b)—
i
the person with care, or non-resident parent, with respect to whom the F294Commission made the decision, or
ii
in a case relating to a maintenance calculation which was applied for under section 7, either of those persons or the child concerned;
F182b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
in relation to paragraph (d), the parent who has been required to make penalty payments; and
d
in relation to paragraph (e), the person required to pay fees.
C753
A person with a right of appeal under this section shall be given such notice as may be prescribed of—
a
that right; and
b
the relevant decision, or the imposition of the requirement.
C754
Regulations may make—
a
provision as to the manner in which, and the time within which, appeals are to be brought; F388...
F388b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C755
The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.
F1836
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C757
In deciding an appeal under this section, F390the First-tier 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 F295Commission made the decision or imposed the requirement.
C758
If an appeal under this section is allowed, the F389First-tier Tribunal may—
a
itself make such decision as it considers appropriate; or
b
remit the case to the F296Commission, together with such directions (if any) as it considers appropriate.
F3920A Lapse of appeals.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3921 Child support appeal tribunals.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F39122 Child Support Commissioners.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C1523 Child Support Commissioners for Northern Ireland.
1
Her Majesty may from time to time appoint a Chief Child Support Commissioner for Northern Ireland and such number of other Child Support Commissioners for Northern Ireland as she may think fit.
2
The Chief Child Support Commissioner for Northern Ireland and the other Child Support Commissioners for Northern Ireland shall be appointed from among persons who are barristers or solicitors of not less than F1887 years’ standing.
3
Schedule 4 shall have effect with respect to Child Support Commissioners for Northern Ireland F392...
F604
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F605
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23AF71Redetermination of appeals.
1
This section applies where an application is made F393to the First-tier Tribunal for permission to appeal to the Upper Tribunal from any decision of the First-tier Tribunal under section 20.
F3942
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
4
The “principal parties” are—
F297za
the Commission;
a
the Secretary of State; and
b
those who are qualifying persons for the purposes of section 20(2) in relation to the decision in question.
I7C3724F397Appeals to Upper Tribunal
C82F2981
Each of the following may appeal F398to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007 from any decision of the First-tier Tribunal under section 20 of this Act—
a
the Commission,
b
the Secretary of State, and
c
any person who is aggrieved by the decision of an appeal tribunal.
F511A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3992
Where a question which would otherwise fall to be determined by the Commission or the Secretary of State under this Act first arises in the course of an appeal to the Upper Tribunal, that tribunal may, if it thinks fit, determine the question even though it has not been considered by the Commission or the Secretary of State.
F40025 Appeal from Child Support Commissioner on question of law.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26 Disputes about parentage.
1
Where a person who is alleged to be a parent of the child with respect to whom an application for a F152maintenance calculation has been made F204... (“the alleged parent”) denies that he is one of the child’s parents, F52the F247Commission shall not make a F152maintenance 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 subsection (2).
2
The Cases are —
F69Case A1
Where—
- a
the child is habitually resident in England and Wales;
- b
the F247Commission 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.
- a
Case A2
Where—
- a
the child is habitually resident in England and Wales;
- b
the alleged parent has been registered as father of the child under section 10 or 10A of the Births and Deaths Registration Act 1953, or in any register kept under section 13 (register of births and still-births) or section 44 (Register of Corrections Etc) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965, or under Article 14 or 18(1)(b)(ii) of the Births and Deaths Registration (Northern Ireland) Order 1976; and
- c
the child has not subsequently been adopted.
- a
Case A3
Where the result of a scientific test (within the meaning of section 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.
- a
Case A
Where the alleged parent is a parent of the child in question by virtue of having adopted him.
F452Case 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).
F452Case B1
Where the Secretary of State 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 section F7255A or 56 of the M8Family Law Act 1986 F31or Article 32 of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 (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
- i
- b
the child has not subsequently been adopted.
- a
Case D
F73. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Case E
Where—
Case F
Where—
- a
the alleged parent has been found, or adjudged, to be the father of the child in question—
- i
in proceedings before any court in England and Wales which are relevant proceedings for the purposes of section 12 of the M10Civil Evidence Act 1968 F32or in proceedings before any court in Northern Ireland which are relevant proceedings for the purposes of section 8 of the Civil Evidence Act (Northern Ireland) 1971; or
- ii
in affiliation proceedings before any court in the United Kingdom,
(whether or not he offered any defence to the allegation of paternity) and that finding or adjudication still subsists; and
- i
- b
the child has not subsequently been adopted.
- a
3
In this section—
“adopted” means adopted within the meaning of Part IV of the M11Adoption Act 1976 F165or Chapter 4 of Part 1 of the Adoption and Children Act 2002 or, in relation to Scotland, Part IV of the M12Adoption (Scotland) Act 1978; and
“affiliation proceedings”, in relation to Scotland, means any action of affiliation and aliment.
27F74Applications for declaration of parentage under Family Law Act 1986.
1
This section applies where—
a
b
the F248Commission is not satisfied that the case falls within one of those set out in section 26(2); and
c
the F248Commission or the person with care makes an application for a declaration under section 55A of the Family Law Act 1986 as to whether or not the alleged parent is one of the child’s parents.
2
Where this section applies—
a
if it is the person with care who makes the application, she shall be treated as having a sufficient personal interest for the purposes of subsection (3) of that section; and
b
if it is the F248Commission who makes the application, that subsection shall not apply.
3
This section does not apply to Scotland.
27AF14Recovery of fees for scientific tests.
1
This section applies in any case where—
a
b
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 subsection (2) is satisfied.
2
The conditions are that—
a
the alleged parent does not deny that he is one of the child’s parents;
b
in proceedings under F75section 55A of the Family Law Act 1986, a court has made a declaration that the alleged parent is a parent of the child in question; or
c
in an action under section 7 of the Law Reform (Parent and Child) (Scotland) Act 1986, brought by the F249Commission by virtue of section 28, a court has granted a decree of declarator of parentage to the effect that the alleged parent is a parent of the child in question.
3
4
In this section—
“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 section 20 of the Family Law Reform Act 1969 (tests to determine paternity);
“request” means a request made by a court under section 70 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (blood and other samples in civil proceedings); and
“scientific tests” means scientific tests made with the object of ascertaining the inheritable characteristics of bodily fluids or bodily tissue.
5
28 Power of F251Commission to initiate or defend actions of declarator: Scotland.
F121
Subsection (1A) applies in any case where—
a
1A
In any case where this subsection applies, the F251Commission may bring an action for declarator of parentage under section 7 of the Law Reform (Parent and Child) (Scotland) Act 1986.
2
3
This section applies to Scotland only.
F40Decisions and appeals dependent on other cases
Ss. 28ZA, 28ZB and cross-heading inserted (4.3.1999 for specified purposes, 1.6.1999 in so far as not already in force) by Social Security Act 1998 (c. 14), ss. 43, 87(2); S.I. 1999/528, art. 2(a), Sch.; S.I. 1999/1510, art. 2(d)
28ZADecisions involving issues that arise on appeal in other cases
1
This section applies where—
2
If the F299Commission 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
F300it need not, except in such cases or circumstances as may be prescribed, make the decision while the appeal is pending;
b
F300it may, in such cases or circumstances as may be prescribed, make the decision on such basis as may be prescribed.
3
4
For the purposes of this section, 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 paragraphs (a), (b) and (c) of subsection (4), any reference to an appeal, or an application for leave to appeal, against a decision includes a reference to—
a
an application for, or for leave to apply for, judicial review of the decision under section 31 of the Supreme Court Act 1981; or
b
an application to the supervisory jurisdiction of the Court of Session in respect of the decision.
28ZBAppeals involving issues that arise on appeal in other cases
1
This section applies where—
F124a
an appeal (“appeal A”) in relation to a decision or the imposition of a requirement falling within section 20(1) is made to F402the First-tier Tribunal, or from the First-tier Tribunal to the Upper Tribunal; and
b
an appeal (“appeal B”) is pending against a decision given in a different case by F403the Upper Tribunal or a court.
2
If the F302Commission 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, F303the Commission may serve notice requiring the F404First-tier Tribunal or Upper Tribunal—
a
not to determine appeal A but to refer it to F304the Commission; or
b
to deal with the appeal in accordance with subsection (4).
3
Where appeal A is referred to the F302Commission under subsection (2)(a), following the determination of appeal B and in accordance with that determination, F303the Commission shall if appropriate—
a
b
in a case where appeal A has been determined by the F406First-tier Tribunal, make a decision (under section 17) superseding the tribunal’s decision.
4
Where appeal A is to be dealt with in accordance with this subsection, the F407First-tier Tribunal or Upper Tribunal shall either—
a
stay appeal A until appeal B is determined; or
b
if the F408First-tier Tribunal or Upper Tribunal 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 subsection “the appellant” means the person who appealed or, as the case may be, first appealed against the decision F125or the imposition of the requirement mentioned in subsection (1)(a).
5
Where the F409First-tier Tribunal or Upper Tribunal acts in accordance with subsection (4)(b), following the determination of appeal B the F302Commission shall, if appropriate, make a decision (under section 17) superseding the decision of the F410First-tier Tribunal or Upper Tribunal in accordance with that determination.
6
For the purposes of this section, 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 section—
a
b
any reference in paragraph (a), (b) or (c) of subsection (6) to an appeal, or to an application for leave to appeal, against a decision includes a reference to—
i
an application for, or for leave to apply for, judicial review of the decision under section 31 of the Supreme Court Act 1981; or
ii
an application to the supervisory jurisdiction of the Court of Session in respect of the decision.
8
Regulations may make provision supplementing that made by this section.
F41Cases of error
Ss. 28ZC, 28ZD and cross-heading inserted (4.3.1999 for specified purposes, 1.6.1999 in so far as not already in force) by Social Security Act 1998 (c. 14), ss. 44, 87(2); S.I. 1999/528, art. 2(a), Sch.; S.I. 1999/1510, art. 2(d)
28ZCRestrictions on liability in certain cases of error
1
Subject to subsection (2), this section applies where—
a
the effect of the determination, whenever made, of an appeal to F412the Upper Tribunal 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 F306Commission in accordance with that determination (or would, apart from this section, fall to be so made)—
i
ii
as to whether to revise, under section 16, F126any decision (made after the commencement date) referred to in section 16(1A); or
iii
on an application under section 17 (made after the commencement date) for F127any decision (made after the commencement date) referred to in section 17(1).
2
This section does not apply where the decision of the F306Commission mentioned in subsection (1)(b)—
a
is one which, but for section 28ZA(2)(a), would have been made before the date of the relevant determination; or
b
is one made in pursuance of section 28ZB(3) or (5).
3
4
Subsection (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 subsection (1)—
a
where such a decision as is mentioned in paragraph (b)(i) falls to be made; or
b
where such a decision as is mentioned in paragraph (b)(ii) or (iii) falls to be made on an application under section 16 or (as the case may be) section 17,
whether the application was made before or after the date of the relevant determination.
6
In this section—
“adjudicating authority” means the F306Commission, or a child support officer F128or, in the case of a decision made on a referral under section 28D(1)(b), F414the First-tier Tribunal;
“the commencement date” means the date of the coming into force of section 44 of the Social Security Act 1998; and
“the court” means the High Court, the Court of Appeal, the Court of Session, the High Court or Court of Appeal in Northern Ireland, the House of Lords 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 section in accordance with any regulations made for that purpose.
8
Regulations made under subsection (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 F415the Upper Tribunal; or
b
for a determination of a lower court or F416the Upper Tribunal to be treated as if it had been made on the date of a determination of a higher court.
28ZDCorrection of errors and setting aside of decisions
1
Regulations may make provision with respect to—
a
F418b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Nothing in subsection (1) shall be construed as derogating from any power to correct errors F419... which is exercisable apart from regulations made by virtue of that subsection.
F85Variations
Ss. 28A-28C substituted for ss. 28A-28C (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 5(2), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.
C4128A Application for variation of usual rules for calculating maintenance.
1
Where an application for a maintenance calculation is made under section 4 or 7 F209... the person with care or the non-resident parent or (in the case of an application under section 7) either of them or the child concerned may apply to the F252Commission for the rules by which the calculation is made to be varied in accordance with this Act.
2
Such an application is referred to in this Act as an “application for a variation”.
3
4
A person who applies for a variation—
a
need not make the application in writing unless the F252Commission directs in any case that he must; and
b
must say upon what grounds the application is made.
5
In other respects an application for a variation is to be made in such manner as may be prescribed.
6
Schedule 4A has effect in relation to applications for a variation.
C4228BF85 Preliminary consideration of applications.
1
2
Where F309the Commission does so F310it may, on completing the preliminary consideration, reject the application (and proceed to make F311its decision on the application for a maintenance calculation without any variation) if it appears to F312the Commission—
a
that there are no grounds on which F310it could agree to a variation;
b
c
that other prescribed circumstances apply.
C4328CF85 Imposition of regular payments condition.
1
Where—
a
an application for a variation is made by the non-resident parent; and
b
the F313Commission makes an interim maintenance decision,
the F313Commission may also, if F315it has completed F317its preliminary consideration (under section 28B) of the application for a variation and has not rejected it under that section, impose on the non-resident parent one of the conditions mentioned in subsection (2) (a “regular payments condition”).
2
The conditions are that—
a
the non-resident parent must make the payments of child support maintenance specified in the interim maintenance decision;
b
the non-resident parent must make such lesser payments of child support maintenance as may be determined in accordance with regulations made by the Secretary of State.
3
Where the F314Commission imposes a regular payments condition, F316it 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;
b
all the persons with care concerned; and
c
if the application for the maintenance calculation was made under section 7, the child who made the application.
4
A regular payments condition shall cease to have effect—
a
b
on the withdrawal of the application for a variation.
5
6
The question whether a non-resident parent has failed to comply with a regular payments condition is to be determined by the F314Commission.
7
Where the F314Commission determines that a non-resident parent has failed to comply with a regular payments condition F316it shall give written notice of F318its determination to—
a
that parent;
b
all the persons with care concerned; and
c
if the application for the maintenance calculation was made under section 7, the child who made the application.
C4428DF34Determination of applications.
F941
Where an application for a variation has not failed, the F319Commission shall, in accordance with the relevant provisions of, or made under, this Act—
a
either agree or not to a variation, and make a decision under section 11 or 12(1); or
b
refer the application to F420the First-tier Tribunal for the tribunal to determine what variation, if any, is to be made.
2
For the purposes of subsection (1), F95an application for a variation has failed if—
a
it has F96... been withdrawn; or
b
3
C4528EF33Matters to be taken into account.
1
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 F98whether to agree to a variation, the F321Commission shall take into account any representations made to F322it—
a
by the person with care or F88non-resident parent concerned; or
b
where the application for the current F153calculation was made under section 7, by either of them or the child concerned.
4
In determining F98whether to agree to a variation, no account shall be taken of the fact that—
a
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 section “benefit” has such meaning as may be prescribed.
C4628FF100 Agreement to a variation.
1
The F253Commission may agree to a variation if—
a
F254it 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 F255its opinion 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 F253Commission—
a
must have regard, in particular, to the welfare of any child likely to be affected if F254it did agree to a variation; and
b
must, or as the case may be must not, take any prescribed factors into account, or must take them into account (or not) in prescribed circumstances.
3
The F253Commission shall not agree to a variation (and shall proceed to make F255its decision on the application for a maintenance calculation without any variation) if F254it is satisfied that—
a
b
other prescribed circumstances apply.
4
a
determine the basis on which the amount of child support maintenance is to be calculated in response to the application for a maintenance calculation F211... ; and
b
make a decision under section 11 on that basis.
5
6
In determining whether or not to agree to a variation, the F253Commission shall comply with regulations made under Part II of Schedule 4B.
28GF101 Variations: revision and supersession.
1
An application for a variation may also be made when a maintenance calculation is in force.
2
The Secretary of State may by regulations provide for—
a
sections 16, 17 and 20; and
b
sections 28A to 28F and Schedules 4A and 4B,
to apply with prescribed modifications in relation to such applications.
3
The Secretary of State may by regulations provide that, in prescribed cases (or except in prescribed cases), a decision under section 17 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.
F12928HDeparture directions: decisions and appeals
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13028I Transitional provisions.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F102Voluntary payments
S. 28J and cross-heading inserted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 20(1), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 5
28J Voluntary payments.
1
This section applies where—
a
a person has applied for a maintenance calculation under section 4(1) or 7(1) F212... ;
b
the F256Commission has neither made a decision under section 11 or 12 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 F256Commission has agreed to give); and
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
5
The Secretary of State 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 enforcement
I8C16C5029 Collection of child support maintenance.
1
The F258Commission may arrange for the collection of any child support maintenance payable in accordance with a F152maintenance calculation where—
F213a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C172
C173
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 F260Commission; or
iii
to, or through, such other person as the F260Commission may, from time to time, 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 F260Commission or any other person, in accordance with the regulations;
e
empowering the F260Commission to direct any person liable to make payments in accordance with the F153calculation—
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 F153calculation 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.
F1904
If the regulations include provision for payment by means of deduction in accordance with an order under section 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 section 31 would be made to have a right of appeal to a magistrates' court (or, in Scotland, to the sheriff) against a decision that the exclusion required by paragraph (a) does not apply.
5
On an appeal under regulations made under subsection (4)(b) the court or (as the case may be) the sheriff shall not question the maintenance calculation by reference to which the order under section 31 would be made.
6
Regulations under subsection (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 magistrates' court (or, in Scotland, of the sheriff) 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 section 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.
I9C18C5030 Collection and enforcement of other forms of maintenance.
1
Where the F323Commission is arranging for the collection of any payments under section 29 or subsection (2), F324it 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.
F1312
The F323Commission 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 F324it is not arranging for the collection of child support maintenance with respect to that child.
3
Where—
a
b
c
4
In relation to England and Wales, the Secretary of State may by regulations make provision for sections 29 and 31 to 40 to apply, with such modifications (if any) as he considers necessary or expedient, for the purpose of enabling F325the Commission to enforce any obligation to pay any amount which F326it is authorised to collect under this section.
5
In relation to Scotland, the Secretary of State may by regulations make provision for the purpose of enabling F327the Commission to enforce any obligation to pay any amount which F328it is authorised to collect under this section—
a
empowering F327the Commission to bring any proceedings or take any other steps (other than diligence against earnings) which could have been brought or taken by or on behalf of the person to whom the periodical payments are payable;
b
applying sections 29, 31 and 32 with such modifications (if any) as he considers necessary or expedient.
I10C19C5031 Deduction from earnings orders.
1
This section applies where any person (“the liable person”) is liable to make payments of child support maintenance.
2
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 F153calculation;
b
amounts of child support maintenance which will become due under the F153calculation; 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 F329Commission.
6
The F329Commission shall serve a copy of any deduction from earnings order which F330it makes under this section on—
a
the person who appears to the F329Commission 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 section and in section 32 “earnings” has such meaning as may be prescribed.
I11C20C5032 Regulations about deduction from earnings orders.
1
The Secretary of State 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;
F195bb
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 F152maintenance 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 F331Commission;
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 F331Commission 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 section 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 F331Commission 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 from time to time notify the F331Commission, 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 F331Commission, 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 enactment relating to England and Wales which provides for deductions from the liable person’s earnings;
c
any diligence against earnings.
5
The regulations may include a provision that a liable person may appeal to a magistrates’ court (or in Scotland to the sheriff) 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 subsection (5) the court or (as the case may be) the sheriff shall not question the F152maintenance calculation by reference to which the deduction from earnings order was made.
7
Regulations made by virtue of subsection (5) may include provision as to the powers of a magistrates’ court, or in Scotland of the sheriff, 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 section which is designated for the purposes of this subsection, he shall be guilty of an offence.
9
In subsection (8) “designated” means designated by the regulations.
10
It shall be a defence for a person charged with an offence under subsection (8) to prove that he took all reasonable steps to comply with the requirements in question.
11
Any person guilty of an offence under subsection (8) shall be liable on summary conviction to a fine not exceeding level two on the standard scale.
C21C5033 Liability orders.
1
This section 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 F332Commission 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 F152maintenance calculation in question.
2
The F332Commission may apply to a magistrates’ court or, in Scotland, to the sheriff for an order (“a liability order”) against the liable person.
3
Where the F332Commission applies for a liability order, the magistrates’ court or (as the case may be) sheriff 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 subsection (2), the court or (as the case may be) the sheriff shall not question the F152maintenance calculation under which the payments of child support maintenance fell to be made.
F155
F636
Where regulations have been made under section 29(3)(a)—
a
the liable person fails to make a payment (for the purposes of subsection (1)(a) of this section); and
b
a payment is not paid (for the purposes of subsection (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.
C22I12C5034 Regulations about liability orders.
1
The Secretary of State may make regulations in relation to England and Wales—
a
prescribing the procedure to be followed in dealing with an application by the F333Commission for a liability order;
b
prescribing the form and contents of a liability order; and
c
providing that where a magistrates’ court 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 F334Commission.
2
In subsection (1) “relevant information” means any information of a prescribed description which is in the possession of the liable person and which the F335Commission has asked him to supply.
I13C23C50C6435 Enforcement of liability orders by distress.
1
Where a liability order has been made against a person (“the liable person”), the F336Commission may levy the appropriate amount by distress and sale of the liable person’s goods.
2
In subsection (1), “the appropriate amount” means the aggregate of—
a
the amount in respect of which the order was made, to the extent that it remains unpaid; and
b
an amount, determined in such manner as may be prescribed, in respect of the charges connected with the distress.
3
The F337Commission may, in exercising F338its powers under subsection (1) against the liable person’s goods, seize—
a
any of the liable person’s goods except—
i
such tools, books, vehicles and other items of equipment as are necessary to him for use personally by him in his employment, business or vocation;
ii
such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying his basic domestic needs; and
b
any money, banknotes, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to the liable person.
4
For the purposes of subsection (3), the liable person’s domestic needs shall be taken to include those of any member of his family with whom he resides.
5
No person levying a distress under this section shall be taken to be a trespasser—
a
on that account; or
b
from the beginning, on account of any subsequent irregularity in levying the distress.
6
A person sustaining special damage by reason of any irregularity in levying a distress under this section may recover full satisfaction for the damage (and no more) by proceedings in trespass or otherwise.
7
The Secretary of State may make regulations supplementing the provisions of this section.
8
The regulations may, in particular—
a
provide that a distress under this section may be levied anywhere in England and Wales;
b
provide that such a distress shall not be deemed unlawful on account of any defect or want of form in the liability order;
c
provide for an appeal to a magistrates’ court by any person aggrieved by the levying of, or an attempt to levy, a distress under this section;
d
make provision as to the powers of the court on an appeal (which may include provision as to the discharge of goods distrained or the payment of compensation in respect of goods distrained and sold).
C24C50C6536 Enforcement in county courts.
1
Where a liability order has been made against a person, the amount in respect of which the order was made, to the extent that it remains unpaid, shall, if a county court so orders, be recoverable by means of garnishee proceedings or a charging order, as if it were payable under a county court order.
2
In subsection (1) “charging order” has the same meaning as in section 1 of the M13Charging Orders Act 1979.
C25I14C5037 Regulations about liability orders: Scotland.
1
Section 34(1) does not apply to Scotland.
2
In Scotland, the Secretary of State may make regulations providing that where the sheriff 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 F339Commission.
3
In this section “relevant information” has the same meaning as in section 34(2).
C26C50C6638 Enforcement of liability orders by diligence: Scotland.
1
In Scotland, where a liability order has been made against a person, the order shall be warrant anywhere in Scotland—
a
b
for an arrestment (other than an arrestment of the person’s earnings in the hands of his employers) and action of furthcoming or sale,
and shall be apt to found a Bill of Inhibition or an action of adjudication at the instance of the F221Commission.
2
In subsection (1) the “appropriate amount” means the amount in respect of which the order was made, to the extent that it remains unpaid.
C27C5039 Liability orders: enforcement throughout United Kingdom.
1
The Secretary of State may by regulations provide for—
a
any liability order made by a court in England and Wales; or
b
any corresponding order made by a court in Northern Ireland,
to be enforced in Scotland as if it had been made by the sheriff.
2
The power conferred on the Court of Session by section 32 of the M14Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in the sheriff court) shall extend to making provision for the registration in the sheriff court for enforcement of any such order as is referred to in subsection (1).
3
The Secretary of State may by regulations make provision for, or in connection with, the enforcement in England and Wales of—
a
any liability order made by the sheriff in Scotland; or
b
any corresponding order made by a court in Northern Ireland,
as if it had been made by a magistrates’ court in England and Wales.
4
Regulations under subsection (3) may, in particular, make provision for the registration of any such order as is referred to in that subsection in connection with its enforcement in England and Wales.
C5039AF76Commitment to prison and disqualification from driving.
1
Where the F340Commission has sought—
a
in England and Wales to levy an amount by distress under this Act; or
b
to recover an amount by virtue of section 36 or 38,
and that amount, or any portion of it, remains unpaid F341it may apply to the court under this section.
2
An application under this section 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 from 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
5
In this section and section 40B, “driving licence” means a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988.
6
In this section “the court” means—
a
in England and Wales, a magistrates’ court;
b
in Scotland, the sheriff.
I15C28C50C61C6740 Commitment to prison.
F771
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F772
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 mentioned in section 35(1) or so much of it as remains outstanding; and
ii
an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of commitment; and
b
shall state that amount.
5
No warrant may be issued under this section against a person who is under the age of 18.
6
A warrant issued under this section 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 subsection (6) shall be calculated in accordance with Schedule 4 to the M15Magistrates’ Courts Act 1980 (maximum periods of imprisonment in default of payment) but shall not exceed six weeks.
8
The Secretary of State may by regulations make provision for the period of imprisonment specified in any warrant issued under this section 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 section may be directed to such person or persons as the court issuing it thinks fit.
10
Section 80 of the Magistrates’ Courts Act 1980 (application of money found on defaulter) shall apply in relation to a warrant issued under this section against a liable person as it applies in relation to the enforcement of a sum mentioned in subsection (1) of that section.
11
The Secretary of State may by regulations make provision—
a
as to the form of any warrant issued under this section;
b
allowing an application under this section 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 magistrates’ court 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.
F7812
This section does not apply to Scotland.
C50C6240AF79Commitment to prison: Scotland.
1
If, but only if, the sheriff is satisfied that there has been wilful refusal or culpable neglect on the part of the liable person he may—
a
issue a warrant for his committal to prison; or
b
fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as he thinks just.
2
A warrant under this section—
a
shall be made in respect of an amount equal to the aggregate of—
i
the appropriate amount under section 38; and
ii
an amount (determined in accordance with regulations made by the Secretary of State) in respect of the expenses of commitment; and
b
shall state that amount.
3
No warrant may be issued under this section against a person who is under the age of 18.
4
A warrant issued under this section 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.
5
The maximum period of imprisonment which may be imposed by virtue of subsection (4) is six weeks.
6
The Secretary of State may by regulations make provision for the period of imprisonment specified in any warrant issued under this section to be reduced where there is part payment of the amount in respect of which the warrant was issued.
7
A warrant issued under this section may be directed to such person as the sheriff thinks fit.
8
The power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make provision—
a
as to the form of any warrant issued under this section;
b
allowing an application under this section 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 sufficient 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, the sheriff may issue a citation to him to appear before the sheriff and (if he does not obey) may issue a warrant for his arrest;
e
that for the purpose of enabling such an inquiry, the sheriff may issue a warrant for the liable person’s arrest without issuing a citation;
f
as to the execution of a warrant of arrest.
C50C63C6840BF80Disqualification from driving: further provision.
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, from 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 section 40 and this section.
3
A disqualification order must state the amount in respect of which it is made, which is to be the aggregate of—
a
the amount mentioned in section 35(1), or so much of it as remains outstanding; and
b
an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of the application under section 39A.
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 section 108(1) of the Road Traffic Act 1988).
5
On an application by the F343Commission 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 subsection (3) (the “amount due”) is paid to any person authorised to receive it; and
b
must make an order revoking the disqualification order if all of the amount due is so paid.
6
The F343Commission 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 subsection (5)(a), and the person liable may reply to those representations.
7
The F343Commission may make a further application under section 39A 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 subsection (5); or
c
allows an appeal against a disqualification order,
9
10
Section 80 of the Magistrates’ Courts Act 1980 (application of money found on defaulter) shall apply in relation to a disqualification order under this section in relation to a liable person as it applies in relation to the enforcement of a sum mentioned in subsection (1) of that section.
11
The Secretary of State may by regulations make provision in relation to disqualification orders corresponding to the provision he may make under section 40(11).
12
In the application to Scotland of this section—
a
in subsection (2) for “section 40” substitute “section 40A”
;
b
in subsection (3) for paragraph (a) substitute—
a
the appropriate amount under section 38;
c
subsection (10) is omitted; and
d
for subsection (11) substitute—
11
The power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make, in relation to disqualification orders, provision corresponding to that which may be made by virtue of section 40A(8).
I16C5041 Arrears of child support maintenance.
1
This section applies where—
a
F212
Where the F262Commission recovers any such arrears F263it may, in such circumstances as may be prescribed and to such extent as may be prescribed, retain them if F263it 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 F88non-resident parent made the payment or payments of child support maintenance in question.
2A
In determining for the purposes of subsection (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 F152maintenance calculation had effect from a date earlier than that on which it was made, the F153calculation shall be taken to have been in force at that time.
F833
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F83C704
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F835
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
C5041AC71F103Penalty payments.
1
The Secretary of State may by regulations make provision for the payment to F346the Commission 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% of the amount of child support maintenance payable for that week, but otherwise is to be determined by the F347Commission.
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 subsection (1) may, in particular, make provision—
a
as to the time at which a penalty payment is to be payable;
b
for the F348Commission to waive a penalty payment, or part of it.
5
The provisions of this Act 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 section.
6
C5041BF20Repayment of overpaid child support maintenance.
1
This section applies where it appears to the F351Commission that F88a 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
F1041A
This section also applies where the non-resident parent has made a voluntary payment and it appears to the F352Commission —
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 paragraph (b), it also appears to F353it that subsection (1)(a) or (b) applies.
2
3
4
Any such requirement shall be imposed by giving the relevant person a written demand for the amount which the F358Commission wishes to recover from him.
5
6
The Secretary of State 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 F359Commission by the relevant person; and
b
child support maintenance has continued to be payable by the F88non-resident parent concerned to the person with care concerned, or again becomes so payable.
F1057
For the purposes of this section—
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 subsection (1A)(a),
shall be treated as an overpayment of child support maintenance made by a non-resident parent.
8
In this section “relevant person”, in relation to an overpayment, means the person with care to whom the overpayment was made.
9
Special cases
42 Special cases.
1
The Secretary of State may by regulations provide that in prescribed circumstances a case is to be treated as a special case for the purposes of this Act.
2
Those regulations may, for example, provide for the following to be special cases—
a
each parent of a child is F88a 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 F88non-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 F88a 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 F88non-resident parent in relation to those children;
f
a qualifying child has his home in two or more separate households.
3
The Secretary of State may by regulations make provision with respect to special cases.
4
Regulations made under subsection (3) may, in particular—
a
modify any provision made by or under this Act, 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 Act not to apply to any such case.
43F106 Recovery of child support maintenance by deduction from benefit.
1
This section 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 section are satisfied.
2
The power of the Secretary of State to make regulations under section 5 of the Social Security Administration Act 1992 by virtue of subsection (1)(p) (deductions from benefits) may be exercised in relation to cases to which this section 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 section, the benefits to which section 5 of the 1992 Act applies are to be taken as including war disablement pensions and war widows’ pensions (within the meaning of section 150 of the Social Security Contributions and Benefits Act 1992 (interpretation)).
Jurisdiction
I1744 Jurisdiction.
1
F55The F362Commission shall have jurisdiction to make a F152maintenance calculation with respect to a person who is—
a
a person with care;
b
F88a non-resident parent; or
c
a qualifying child,
only if that person is habitually resident in the United KingdomF70, except in the case of a non-resident parent who falls within subsection (2A).
2
Where the person with care is not an individual, subsection (1) shall have effect as if paragraph (a) were omitted.
F642A
A non-resident parent falls within this subsection 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 registered under the Companies Act 1985 in England and Wales or in Scotland, or under the Companies (Northern Ireland) Order 1986; or
d
employed by a body of a prescribed description.
F1323
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C3845 Jurisdiction of courts in certain proceedings under this Act.
C391
The Lord Chancellor or, in relation to Scotland, the Lord Advocate may 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 F422the First-tier Tribunal; or
b
shall be so made in such circumstances as may be so specified.
2
In subsection (1), “court” means—
a
in relation to England and Wales and subject to any provision made under Schedule 11 to the M16Children Act 1989 (jurisdiction of courts with respect to certain proceedings relating to children) the High Court, a county court or a magistrates’ court; and
b
in relation to Scotland, the Court of Session or the sheriff.
3
Schedule 11 to the Act of 1989 shall be amended in accordance with subsections (4) and (5).
4
The following sub-paragraph shall be inserted in paragraph 1, after sub-paragraph (2)—
2A
Sub-paragraphs (1) and (2) shall also apply in relation to proceedings—
a
under section 27 of the Child Support Act 1991 (reference to court for declaration of parentage); or
b
which are to be dealt with in accordance with an order made under section 45 of that Act (jurisdiction of courts in certain proceedings under that Act)
5
In paragraphs 1(3) and 2(3), the following shall be inserted after “Act 1976”—
bb
section 20 (appeals) or 27 (reference to court for declaration of parentage) of the Child Support Act 1991;
F4236
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Any order under subsection (1) F424... may make—
a
such modifications of any provision of this Act or of any other enactment; and
b
such transitional provision,
as the Minister making the order considers appropriate in consequence of any provision made by the order.
F1688
The functions of the Lord Chancellor under this section may be exercised only after consultation with the Lord Chief Justice.
9
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
Miscellaneous and supplemental
F18746 Reduced benefit decisions.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46AF37Finality of decisions
1
Subject to the provisions of this Act F425and to any provision made by or under Chapter 2 of Part 1 of the Tribunals, Courts and Enforcement Act 2007, any decision of F363the Commission, the Secretary of State or F426the First-tier Tribunal made in accordance with the foregoing provisions of this Act 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 sections 8 to 16 of the Social Security Act 1998, or with regulations under section 11 of that Act; and
c
decisions made under the Vaccine Damage Payments Act 1979.
46BMatters arising as respects decisions
1
Regulations may make provision as respects matters arising pending—
a
any decision of the F364Commission under section 11, 12 or 17;
b
any decision of F427the First-tier Tribunal under section 20; or
c
any decision of F428the Upper Tribunal in relation to a decision of the First-tier Tribunal under this Act.
2
Regulations may also make provision as respects matters arising out of the revision under section 16, or on appeal, of any such decision as is mentioned in subsection (1).
F1333
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I1847 Fees.
1
The Secretary of State may by regulations provide for the payment, by the F88non-resident parent or the person with care (or by both), of such fees as may be prescribed in cases where the Secretary of State takes any action under section 4 or 6.
2
The Secretary of State may by regulations provide for the payment, by the F88non-resident parent, the person with care or the child concerned (or by any or all of them), of such fees as may be prescribed in cases where the Secretary of State takes any action under section 7.
3
Regulations made under this section—
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
c
may, in particular, make provision with respect to the recovery by the Secretary of State of any fees payable under the regulations.
F864
The provisions of this Act 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 section.
48 Right of audience.
1
2
In this section “right of audience” and “right to conduct litigation” have the same meaning as in section 119 of the M17Courts and Legal Services Act 1990.
49 Right of audience: Scotland.
In relation to any proceedings before the sheriff under any provision of this Act, the power conferred on the Court of Session by section 32 of the M18Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in sheriff court) shall extend to the making of rules permitting a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.
I19C7850 Unauthorised disclosure of information.
1
Any person who is, or has been, employed in employment to which F367this subsection 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.
F3681A
Subsection (1) applies to employment as—
F429za
any member of staff appointed under section 40(1) of the Tribunals, Courts and Enforcement Act 2007 in connection with the carrying out of any functions in relation to appeals from decisions made under this Act;
a
any clerk to, or other officer of, an appeal tribunal F430constituted under Chapter 1 of Part 1 of the Social Security Act 1998;
b
any member of the staff of F431any such appeal tribunal;
c
a civil servant in connection with the carrying out of any functions under this Act;
d
any member of, or of the staff of, the Commission;
e
any person who provides, or is employed in the provision of, services to the Commission,
and to employment of any other kind which is prescribed for the purposes of this subsection.
1B
Any person who is, or has been, employed in employment to which this subsection 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 Act; and
c
relates to a particular person.
1C
Subsection (1B) applies to any employment which—
a
is not employment to which subsection (1) applies, and
b
is of a kind prescribed for the purposes of this subsection.
2
It is not an offence under this section—
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 section 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 section 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.
F3715
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
For the purposes of this section 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 enactment 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 Act; or
e
with the consent of the appropriate person.
7
“The responsible person” means—
a
the Lord Chancellor;
b
the Secretary of State;
F369ba
the person appointed to chair the Commission;
F370c
any person authorised for the purposes of this subsection by the Lord Chancellor, the Secretary of State or the person appointed to chair the Commission;
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; F171or
F172b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
F172d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the appropriate person is the attorney F173or custodian (as the case may be) or, in a case falling within paragraph (a), the person to whom the information relates.
F1749
Where the person to whom the information relates lacks capacity (within the meaning of the Mental Capacity Act 2005) to consent to its disclosure, the appropriate person is—
a
a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or
b
a deputy appointed for him, or any other person authorised, by the Court of Protection,
with power in that respect.
50AF366Use of computers
Any decision falling to be made under or by virtue of this Act by the Commission may be made, not only by a person authorised to exercise the Commission's decision-making function, but also by a computer for whose operation such a person is responsible.
51 Supplementary powers to make regulations.
1
The Secretary of State may by regulations make such incidental, supplemental and transitional provision as he considers appropriate in connection with any provision made by or under this Act.
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 F153calculations;
F134ii
the making of decisions under section 11;
F134iii
the making of decisions under section 16 or 17;
F135b
extending the categories of case to which section 16, 17 or 20 applies;
c
as to the date on which an application for a F152maintenance calculation is to be treated as having been made;
d
for attributing payments made under maintenance F153calculations to the payment of arrears;
e
f
for the adjustment, for the purpose of taking account of over-payments or under-payments of child support maintenance, of amounts payable under a F152maintenance 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 (or in Scotland, sufficient) 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 Act.
3
No power to make regulations conferred by any other provision of this Act shall be taken to limit the powers given to the Secretary of State by this section.
52 Regulations and orders.
1
Any power conferred on F169... the Lord Advocate or the Secretary of State by this Act to make regulations or orders (other than a deduction from earnings order) shall be exercisable by statutory instrument.
F1072
No statutory instrument containing (whether alone or with other provisions) regulations made under—
a
b
paragraph 3(2) or 10A(1) of Part I of Schedule 1; or
c
Schedule 4B,
or an order made under section 45(1) or (6), shall be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House of Parliament.
2A
No statutory instrument 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 2000 shall be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House of Parliament.
3
Any other statutory instrument made under this Act (except an order made under section 58(2)) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
4
Any power of a kind mentioned in subsection (1) may be exercised—
a
in relation to all cases to which it extends, in relation to those cases but subject to specified exceptions or in relation to any specified cases or classes of case;
b
so as to make, as respects the cases in relation to which it is exercised—
i
the full provision to which it extends or any lesser provision (whether by way of exception or otherwise);
ii
the same provision for all cases, different provision for different cases or classes of case or different provision as respects the same case or class of case but for different purposes of this Act;
iii
provision which is either unconditional or is subject to any specified condition;
c
so to provide for a person to exercise a discretion in dealing with any matter.
53 Financial provisions.
Any expenses of the Lord Chancellor or the Secretary of State under this Act shall be payable out of money provided by Parliament.
54 Interpretation.
In this Act—
“F88non-resident parent”, has the meaning given in section 3(2);
F59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F17“application for a F136variation” means an application under section 28A F137or 28G;
F141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“benefit Acts” means the F1Social Security Contributions and Benefits Act 1992 and the Social Security Administration Act 1992;
F59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“child benefit” has the same meaning as in the M19Child Benefit Act 1975;
F59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“child support maintenance” has the meaning given in section 3(6);
F59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“deduction from earnings order” has the meaning given in section 31(2);
F138“default maintenance decision” has the meaning given in section 12;
F141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“disability living allowance” has the same meaning as in the F1benefit Acts;
F155. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F25“income-based jobseeker’s allowance” has the same meaning as in the Jobseekers Act 1995;
F198“income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance);
“income support” has the same meaning as in the benefit Acts;
“interim maintenance F139decision” has the meaning given in section 12;
“liability order” has the meaning given in section 33(2);
“maintenance agreement” has the meaning given in section 9(1);
F140“maintenance calculation” means a calculation of maintenance made under this Act and, except in prescribed circumstances, includes a default maintenance decision and an interim maintenance decision;
“maintenance order” has the meaning given in section 8(11);
F141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“parent”, in relation to any child, means any person who is in law the mother or father of the child;
F17“parent with care” means a person who is, in relation to a child, both a parent and a person with care.
F29“parental responsibility”, in the application of this Act—
- a
to England and Wales, has the same meaning as in the Children Act 1989; and
- b
to Scotland, shall be construed as a reference to “parental responsibilities” within the meaning given by section 1(3) of the Children (Scotland) Act 1995;
- a
F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“person with care” has the meaning given in section 3(3);
“prescribed” means prescribed by regulations made by the Secretary of State;
“qualifying child” has the meaning given in section 3(1);
F142“voluntary payment” has the meaning given in section 28J.
55 Meaning of “child”.
1
For the purposes of this Act 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 Secretary of State; or
c
he does not fall within 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 Act if he—
a
is or has been married F161or a civil partner;
b
has celebrated a marriageF162, 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 F163or has been a party to a civil partnership in respect of which a nullity order has been made.
3
In this section—
“advanced education” means education of a prescribed description; and
“recognised educational establishment” means an establishment recognised by the Secretary of State for the purposes of this section as being, or as comparable to, a university, college or school.
4
Where a person has reached the age of 16, the Secretary of State may recognise education provided for him otherwise than at a recognised educational establishment only if the Secretary of State is satisfied that education was being so provided for him immediately before he reached the age of 16.
5
The Secretary of State may provide that in prescribed circumstances education is or is not to be treated for the purposes of this section as being full-time.
6
In determining whether a person falls within subsection (1)(b), no account shall be taken of such interruptions in his education as may be prescribed.
7
The Secretary of State may by regulations provide that a person who ceases to fall within subsection (1) shall be treated as continuing to fall within that subsection for a prescribed period.
8
No person shall be treated as continuing to fall within subsection (1) by virtue of regulations made under subsection (7) after the end of the week in which he reaches the age of 19.
I20E256 Corresponding provision for and co-ordination with Northern Ireland.
1
An Order in Council made under paragraph 1(1)(b) of Schedule 1 to the M20Northern Ireland Act 1974 which contains a statement that it is made only for purposes corresponding to those of the provisions of this Act, other than provisions which relate to the appointment of Child Support Commissioners for Northern Ireland—
a
shall not be subject to sub-paragraphs (4) and (5) of paragraph 1 of that Schedule (affirmative resolution of both Houses of Parliament); but
b
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
F612
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F613
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F614
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57 Application to Crown.
1
The power of the Secretary of State to make regulations under section 14 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 section 15 may enter any Crown premises for the purpose of exercising any powers conferred on him by that section.
3
Where such an inspector duly enters any Crown premises for those purposes, section 15 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 section 31 in relation to that person; but in such a case subsection (8) of section 32 shall apply only in relation to the failure of that person to comply with any requirement imposed on him by regulations made under section 32.
P1I2158 Short title, commencement and extent, etc.
1
This Act may be cited as the Child Support Act 1991.
2
Section 56(1) and subsections (1) to (11) and (14) of this section shall come into force on the passing of this Act but otherwise this Act shall come into force on such date as may be appointed by order made by the Lord Chancellor, the Secretary of State or Lord Advocate, or by any of them acting jointly.
3
Different dates may be appointed for different provisions of this Act and for different purposes (including, in particular, for different cases or categories of case).
4
An order under subsection (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 force by the order, including such adaptations or modifications of—
a
the provisions so brought into force;
b
any provisions of this Act then in force; or
c
any provision of any other enactment,
as appear to him to be necessary or expedient.
5
Different provision may be made by virtue of subsection (4) with respect to different periods.
6
Any provision made by virtue of subsection (4) may, in particular, include provision for—
a
b
the registration of maintenance F153calculations with the appropriate court in connection with any provision of a kind mentioned in paragraph (a);
c
d
a F152maintenance 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.
In paragraph (c) “court” includes a single justice.
7
The Lord Chancellor, the Secretary of State or the Lord Advocate may by order make such amendments or repeals in, or such modifications of, such enactments as may be specified in the order, as appear to him to be necessary or expedient in consequence of any provision made by or under this Act (including any provision made by virtue of subsection (4)).
8
This Act shall, in its application to the Isles of Scilly, have effect subject to such exceptions, adaptations and modifications as the Secretary of State may by order prescribe.
9
Sections 27, 35F143, 40 and 48 and paragraph 7 of Schedule 5 do not extend to Scotland.
10
Sections 7, 28F144, 40A and 49 extend only to Scotland.
11
With the exception of sections 23 and 56(1), subsections (1) to (3) of this section and Schedules 2 and 4, and (in so far as it amends any enactment extending to Northern Ireland) Schedule 5, this Act does not extend to Northern Ireland.
12
Until Schedule 1 to the M21Disability Living Allowance and Disability Working Allowance Act 1991 comes into force, paragraph 1(1) of Schedule 3 shall have effect with the omission of the words “and disability appeal tribunals” and the insertion, after “social security appeal tribunals”, of the word “
and
”
.
I2113
The consequential amendments set out in Schedule 5 shall have effect.
14
In Schedule 1 to the M22Children Act 1989 (financial provision for children), paragraph 2(6)(b) (which is spent) is hereby repealed.
SCHEDULES
SCHEDULE 1 Maintenance F153Calculations
F108PART IC77C58 Calculation of weekly amount of child support maintenance
Sch. 1 Pt. 1 substituted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 1(3), 86(1)(a)(2), Sch. 1 (with ss. 28, 83(6)); S.I. 2000/2994, art. 2(1), Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.
Sch. 1 para. 5 (as originally enacted) amended (18.3.2008 for specified purposes, 27.10.2008 in so far as not already in force) by Welfare Reform Act 2007 (c. 5), s. 70(2), Sch. 3 para. 7(8); S.I. 2008/787, art. 2(1)(4)(f), Sch.
Sch. 1 para. 6 (as originally enacted) amended (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(8)(d), Sch. 24 paras. 4, 5; S.I. 2005/3175, art. 2(1), Sch. 1
General rule
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.
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 rate
2
1
The basic rate is the following percentage of the non-resident parent’s net weekly income—
15% where he has one qualifying child;
20% where he has two qualifying children;
25% 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% where he has one relevant other child;
20% where he has two relevant other children;
25% where he has three or more relevant other children.
Reduced rate
3
1
A reduced rate is payable if—
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 rate
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—
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 paragraph of this sub-paragraph; or
c
he or his partner (if any) receives any benefit prescribed for the purposes of this paragraph of this sub-paragraph.
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 ones paid to the non-resident parent under the law of a place outside the United Kingdom.
Nil rate
5
The rate payable is nil if the non-resident parent—
a
is of a prescribed description; or
b
has a net weekly income of below £5.
Apportionment
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.
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.
Net weekly income
10
1
For the purposes of this Schedule, net weekly income is to be determined in such manner as is provided for in regulations.
2
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.
10A
1
The Secretary of State may by regulations provide that—
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 Secretary of State 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 mentioned there, or as if the amount were an aggregate amount and not an amount for each qualifying child, or both.
Regulations about income
10B
The Secretary of State may by regulations provide that, in such circumstances and to such extent as may be prescribed—
a
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 terms
10C
1
References in this Part of this Schedule to “qualifying children” are to those qualifying children with respect to whom the maintenance calculation falls to be made.
2
References in this Part of this Schedule 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 Act 1992; and
b
such other description of children as may be prescribed.
3
In this Part of this Schedule, 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 of this Schedule, 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.
F1645
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.
F1646
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 II General Provisions About Maintenance F153Calculations
Effective date of F153calculation
11
1
A F152maintenance calculation shall take effect on such date as may be determined in accordance with regulations made by the Secretary of State.
2
That date may be earlier than the date on which the F153calculation is made.
Form of F153calculation
12
Assessments where amount of child support is nil
F145C8013
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Consolidated applications and F153calculations
14
F1461
The Secretary of State may by regulations provide—
a
for two or more applications for maintenance F153calculations to be treated, in prescribed circumstances, as a single application; and
F1472
In sub-paragraph (1), the references (however expressed) to applications for maintenance calculations include references to applications treated as made.
Separate F153calculations for different periods
15
Where F56the F378Commission is satisfied that the circumstances of a case require different amounts of child support maintenance to be assessed in respect of different periods, F379it may make separate maintenance F153calculations each expressed to have effect in relation to a different specified period.
Termination of F153calculations
I2216
1
A F152maintenance calculation shall cease to have effect—
a
on the death of the F88non-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 F88non-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;
F148d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F148e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1492
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F149C723
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1494
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F149C734A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1495
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1496
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1497
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1498
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1499
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
A person with care with respect to whom a F152maintenance calculation is in force shall provide the F380Commission with such information, in such circumstances, as may be prescribed, with a view to assisting the F380CommissionF57... in determining whether the F153calculation has ceased to have effect F150...
11
The Secretary of State may by regulations make such supplemental, incidental or transitional provision as he thinks necessary or expedient in consequence of the provisions of this paragraph.
F372SCHEDULE 2 Provision of Information to Secretary of State
Sch. 2 repealed (1.11.2008) by Child Maintenance and Other Payments Act 2008 (c. 6), s. 62(3), Sch. 7 para. 1(33), Sch. 8; S.I. 2008/2675, art. 3(f)(g)(i)
F372 Inland Revenue records
F3721
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3721A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F372 Local authority records
F3722
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3723
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F42SCHEDULE 3 Child Support Appeal Tribunals
Sch. 3 repealed (1.6.1999) by Social Security Act 1998 (c. 14), s. 87(2), Sch. 7 para. 50, Sch. 8; S.I. 1999/1510, art. 2(f)(iii)(g)(v)
F42 The President
F421
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F42 Membership of child support appeal tribunals
F422
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F42 The chairmen
F423
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F424
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F42 Other members of child support appeal tribunals
F425
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F42 Clerks of tribunals
F426
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F42 Expenses of tribunal members and others
F427
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F42 Consultation with Lord Advocate
F428
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 4 Child Support Commissioners F434for Northern Ireland
Words in Sch. 4 heading inserted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 1(1), Sch. 3 para. 97(2)
Tenure of office
1
1
Every Child Support Commissioner F435for Northern Ireland shall vacate his office F3on the date on which he reaches the age of 70; but this sub-paragraph is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75).
F42
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4363
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4363A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4363B
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commissioners’ remuneration and their pensions
2
1
2
The Lord Chancellor shall pay to a Child Support Commissioner F439for Northern Ireland such expenses incurred in connection with his work as such a Commissioner as may be determined by the Treasury.
F53
Sub-paragraph (1), so far as relating to pensions, allowances or gratuities, shall not have effect in relation to any person to whom Part I of the Judicial Pensions and Retirement Act 1993 applies, except to the extent provided by or under that Act.
F23Expenses of other persons
Sch. 4 para. 2A and cross-heading inserted (18.12.1995) by Child Support Act 1995 (c. 34), s. 30(4), Sch. 3 para. 18(1); S.I. 1995/3262, art. 2, Sch. Pt. 1
F4402A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Commissioners barred from legal practice
F4413
A Child Support Commissioner for Northern Ireland, so long as he holds office as such, shall not practise as a barrister or act for any remuneration to himself as arbitrator or referee or be directly or indirectly concerned in any matter as a conveyancer, notary public or solicitor.
Deputy Child Support Commissioners
4
1
The F442First Minister and deputy First Minister, acting jointly, may appoint persons to act as Child Support Commissioners F443for Northern Ireland (but to be known as deputy Child Support Commissioners F443for Northern Ireland) in order to facilitate the disposal of the business of Child Support Commissioners F443for Northern Ireland.
2
A deputy Child Support Commissioner F444for Northern Ireland shall be appointed—
F445a
from among persons who are barristers or solicitors of not less than the number of years’ standing specified in section 23(2); and
F72A
No appointment of a person to be a deputy Child Support Commissioner F447for Northern Ireland shall be such as to extend beyond the date on which he reaches the age of 70; but this sub-paragraph is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75).
F4483
Paragraph 2 applies to deputy Child Support Commissioners for Northern Ireland, but paragraph 3 does not apply to them.
F22Determination of questions by other officers
Sch. 4 para. 4A and cross-heading inserted (18.12.1995) by Child Support Act 1995 (c. 34), ss. 17(1), 30(4); S.I. 1995/3262, art. 2, Sch. Pt. 1
F4494A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Tribunals of Commissioners
F4495
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Finality of decisions
F4496
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Consultation with Lord Advocate
F4497
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Northern Ireland
F4498
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C83C47F109SCHEDULE 4AApplications for a variation
Sch. 4A substituted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 6(1), 86(1)(a)(2), Sch. 2 Pt. I (with ss. 28, 83(6)); S.I. 2000/2994, art. 2(1), Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.
Sch. 4A (as originally enacted) amended (3.11.2008) by virtue of The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 1(1), Sch. 3 para. 98
Sch. 4A modified (31.1.2001) by The Child Support (Variations) (Modification of Statutory Provisions) Regulations 2000 (S.I. 2000/3173), regs. 1(1), 2, 8(1)
Interpretation
1
In this Schedule, “regulations” means regulations made by the Secretary of State.
Applications for a variation
2
Regulations may make provision—
a
as to the procedure to be followed in considering an application for a variation;
F450b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Completion of preliminary consideration
3
Regulations may provide for determining when the preliminary consideration of an application for a variation is to be taken to have been completed.
Information
4
Joint consideration of applications for a variation and appeals
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.
F2162
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4513
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C48F110SCHEDULE 4BApplications for a variation: The Cases and Controls
Sch. 4B substituted (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 6(2), 86(1)(a)(2), Sch. 2 Pt. II (with ss. 28, 83(6)); S.I. 2000/2994, art. 2(1), Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.
Sch. 4B modified (31.1.2001) by The Child Support (Variations) (Modification of Statutory Provisions) Regulations 2000 (S.I. 2000/3173), regs. 1(1), 2, 8(2)-(5)
Part IThe Cases
General
1
1
The cases in which a variation may be agreed are those set out in this Part of this Schedule or in regulations made under this Part.
2
In this Schedule “applicant” means the person whose application for a variation is being considered.
Special expenses
2
1
A variation applied for by a non-resident parent may be agreed with respect to his special expenses.
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 Secretary of State 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 F217... ;
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 F220... —
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 F218... ;
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 she and a child in relation to whom the application for a maintenance calculation has been made F219... 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 Secretary of State.
5
For the purposes of sub-paragraph (3)(d), the Secretary of State 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 transfers
3
1
A variation may be agreed in the circumstances set out in sub-paragraph (2) if before 5th April 1993—
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 Act) with respect to the child, or any of the children, with respect to whom the application for a maintenance calculation has been made.
Additional cases
4
1
The Secretary of State may by regulations prescribe other cases in which a variation may be agreed.
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 IIRegulatory Controls
5
1
The Secretary of State 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.
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’s 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’s 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 Secretary of State 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).
F151C84C74SCHEDULE 4CDecisions and Appeals: Departure Directions and Reduced Benefit Directions etc.
Sch. 4C repealed (3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(e)(2), Sch. 9 Pt. I (with s. 83(6)); S.I. 2003/192, art. 3, Sch.
Sch. 4C (as originally enacted) amended (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 1(1), Sch. 3 para. 100
Sch. 4C (as originally enacted) amended (14.7.2008 for specified purposes) by Child Maintenance and Other Payments Act 2008 (c. 6), s. 62(3), Sch. 7 para. 1(34)(c); S.I. 2008/1476, art. 2(3)(b)(4)(5)
F151Revision of decisions
F1511
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F151Decisions superseding earlier decisions
F1512
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F151Appeals to appeal tribunals
F1513
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F151Decisions and appeals dependent on other cases
F1514
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1515
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F151Cases of error
F1516
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULE 5 Consequential Amendments
The Tribunals and Inquiries Act 1971 (c.62)
F21
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Northern Ireland Constitution Act 1973 (c. 36)
F622
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The House of Commons Disqualification Act 1975 (c.24)
3
1
The House of Commons Disqualification Act 1975 shall be amended as follows.
2
In Part I F18of Schedule 1 (disqualifying judicial offices), the following entries shall be inserted at the appropriate places— “
Chief or other Child Support Commissioner (excluding a person appointed under paragraph 4 of Schedule 4 to the Child Support Act 1991).
”
“
Chief or other Child Support Commissioner for Northern Ireland (excluding a person appointed under paragraph 4 of Schedule 4 to the Child Support Act 1991).
”
F583
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Northern Ireland Assembly Disqualification Act 1975 (c.25)
4
1
In Part I of F19Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (disqualifying judicial offices), the following entries shall be inserted at the appropriate places— “
Chief or other Child Support Commissioner (excluding a person appointed under paragraph 4 of Schedule 4 to the Child Support Act 1991).
”
“
Chief or other Child Support Commissioner for Northern Ireland (excluding a person appointed under paragraph 4 of Schedule 4 to the Child Support Act 1991).
”
The Family Law (Scotland) Act 1985 (c.37)
5
In section 4 (amount of aliment) of the Family Law (Scotland) Act 1985, at the end there shall be added—
4
Where a court makes an award of aliment in an action brought by or on behalf of a child under the age of 16 years, it may include in that award such provision as it considers to be in all the circumstances reasonable in respect of the expenses incurred wholly or partly by the person having care of the child for the purpose of caring for the child.
Bankruptcy (Scotland) Act 1985 (c.66)
6
1
The Bankruptcy (Scotland) Act 1985 shall be amended as follows.
2
In section 32 (vesting of estate and dealings of debtor after sequestration)—
a
in subsection (3)—
i
after paragraph (b) there shall be inserted—
c
any obligation of his to pay child support maintenance under the Child Support Act 1991,
ii
after “relevant obligations” where second occurring there shall be inserted “
referred to in paragraphs (a) and (b) above
”
;
b
in subsection (5) after “Diligence” there shall be inserted “
(which, for the purposes of this section, includes the making of a deduction from earnings order under the Child Support Act 1991)
”
.
3
In section 37 (effect of sequestration on diligence), in subsection (5A) for “or a conjoined arrestment order” there is substituted “
, a conjoined arrestment order or a deduction from earnings order under the Child Support Act 1991
”
.
4
In section 55 (effect of discharge under section 54), in subsection (2)(d)—
a
after “being” there shall be inserted “
(i)
”
;
b
at the end there shall be inserted—
or
ii
child support maintenance within the meaning of the Child Support Act 1991 which was unpaid in respect of any period before the date of sequestration of—
aa
any person by whom it was due to be paid; or
bb
any employer by whom it was, or was due to be, deducted under section 31(5) of that Act.
The Insolvency Act 1986 (c.45)
7
In section 281(5)(b) of the Insolvency Act 1986 (effect of discharge of bankrupt), after “family proceedings” there shall be inserted “
or under a F152maintenance calculation made under the Child Support Act 1991
”
.
The Debtors (Scotland) Act 1987 (c.18)
8
1
The Debtors (Scotland) Act 1987 shall be amended as follows.
2
In section 1(5) (time to pay directions not competent in certain cases) after paragraph (c) there shall be inserted—
cc
in connection with a liability order within the meaning of the Child Support Act 1991;
3
In section 15(3) (interpretation of Part I), in the definition of “decree or other document”, after “maintenance order” there shall be inserted “
, a liability order within the meaning of the Child Support Act 1991
”
.
4
In section 54(1) (maintenance arrestment to be preceded by default) in paragraph (c) for “the aggregate of 3 instalments” there shall be substituted “
one instalment
”
.
5
In section 72 (effect of sequestration on diligence against earnings)—
a
in subsection (2) after “order” there shall be inserted “
or deduction from earnings order under the Child Support Act 1991
”
;
b
after subsection (3) there shall be inserted—
3A
Any sum deducted by the employer under such a deduction from earnings order made before the date of sequestration shall be paid to the Secretary of State, notwithstanding that the date of payment will be after the date of sequestration.
c
after subsection (4) there shall be inserted—
4A
A deduction from earnings order under the said Act shall not be competent after the date of sequestration to secure the payment of any amount due by the debtor under a F152maintenance calculation within the meaning of that Act in respect of which a claim could be made in the sequestration.
6
In section 73(1) (interpretation of Part III), in the definition of “net earnings”,
a
in paragraph (c) for “within the meaning of the Wages Councils Act 1979” there shall be substituted
, namely any enactment, rules, deed or other instrument providing for the payment of annuities or lump sums—
i
to the persons with respect to whom the instrument has effect on their retirement at a specified age or on becoming incapacitated at some earlier age, or
ii
to the personal representatives or the widows, relatives or dependants of such persons on their death or otherwise,
whether with or without any further or other benefit;
b
at the end there shall be added—
d
any amount deductible by virtue of a deduction from earnings order which, in terms of regulations made under section 32(4)(c) of the Child Support Act 1991, is to have priority over diligences against earnings.
7
In section 106 (interpretation) in the definition of “maintenance order”—
a
the word “or” where it appears after paragraph (g), shall be omitted; and
b
at the end there shall be inserted
or
j
a F152maintenance calculation within the meaning of the Child Support Act 1991.
Act: for extent see s. 58(8)-(11)