xmlns:atom="http://www.w3.org/2005/Atom" xmlns:atom="http://www.w3.org/2005/Atom"

Collection and enforcementE+W+S

29 Collection of child support maintenance.E+W+S

(1)The [F1Commission] may arrange for the collection of any child support maintenance payable in accordance with a [F2maintenance calculation] where—

F3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)an application has been made to the [F1Commission] under section 4(2) or 7(3) for [F4it] to arrange for its collection.

(2)Where a [F2maintenance calculation] is made under this Act, payments of child support maintenance under the [F5calculation] shall be made in accordance with regulations made by the Secretary of State.

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

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

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

(ii)to, or through, the [F6Commission]; or

(iii)to, or through, such other person as the [F6Commission] 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 [F6Commission] or any other person, in accordance with the regulations;

(e)empowering the [F6Commission] to direct any person liable to make payments in accordance with the [F5calculation]—

(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 [F5calculation] 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.

[F7(4)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.]

Textual Amendments

F5Word 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.

F7S. 29(4)-(7) inserted (26.9.2008 for specified purposes, 27.10.2008 in so far as not already in force) by Child Maintenance and Other Payments Act 2008 (c. 6), ss. 20, 62(3); S.I. 2008/2548, art. 2(a)

Modifications etc. (not altering text)

C3S. 29(2)(3) applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3; s. 29(2)(3) applied (with modifications) (S.) (5.4.1993) by S.I. 1992/2643, reg.4

Commencement Information

I1S. 29 wholly in force; s. 29 not in force at Royal Assent see s. 58(2); s. 29(2)(3) in force at 17.6.1992 by S.I. 1992/1431, art. 2, Sch.; s. 29 in force in so far as not already in force at 5.4.1993 by S.I. 1992/2644, art. 2

30 Collection and enforcement of other forms of maintenance.E+W+S

(1)Where the [F8Commission] is arranging for the collection of any payments under section 29 or subsection (2), [F9it] 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.

[F10(2)The [F8Commission] 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 [F9it] is not arranging for the collection of child support maintenance with respect to that child.]

(3)Where—

(a)the [F8Commission] is arranging, under this Act, for the collection of different payments (“the payments”) from the same [F11non-resident parent];

(b)an amount is collected by the [F8Commission] from the [F11non-resident parent] which is less than the total amount due in respect of the payments; and

(c)the [F11non-resident parent] has not stipulated how that amount is to be allocated by the [F8Commission] as between the payments,

the [F8Commission] may allocate that amount as [F9it] sees fit.

(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 [F12the Commission] to enforce any obligation to pay any amount which [F13it] 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 [F14the Commission] to enforce any obligation to pay any amount which [F15it] is authorised to collect under this section—

(a)empowering [F14the 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.

Textual Amendments

F11Words in Act substituted (31.1.2001 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(a)(2), Sch. 3 para. 11(2) (with s. 83(6)); S.I. 2000/3354, art. 2(1)(b); S.I. 2003/192, art. 3, Sch.

Modifications etc. (not altering text)

Commencement Information

I2S. 30 partly in force; s. 30 not in force at Royal Assent see s. 58(2); s. 30(1)(4)(5) in force at 17.6.1992 by S.I. 1992/1431, art. 2, Sch.; s. 30(3) in force at 5.4.1993 by S.I. 1992/2644, art. 2

31 Deduction from earnings orders.E+W+S

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

(2)The [F16Commission] may make an order (“a deduction from earnings order”) against a liable person to secure the payment of any amount due under the [F2maintenance calculation] in question.

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

(a)arrears of child support maintenance payable under the [F5calculation];

(b)amounts of child support maintenance which will become due under the [F5calculation]; 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 [F16Commission].

(6)The [F16Commission] shall serve a copy of any deduction from earnings order which [F17it] makes under this section on—

(a)the person who appears to the [F16Commission] 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.

Textual Amendments

F5Word 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.

Modifications etc. (not altering text)

C5S. 31 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3; s. 31 applied (with modifications) (S.) (5.4.1993) by S.I. 1992/2643, reg.4

Commencement Information

I3S. 31 wholly in force; s. 31 not in force at Royal Assent see s. 58(2); s. 31(8) in force at 17.6.1992 by S.I. 1992/1431, art. 2, Sch.; s. 31 in force in so far as not already in force at 5.4.1993 by S.I. 1992/2644, art. 2

32 Regulations about deduction from earnings orders.E+W+S

(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;

[F18(bb)for the amount or amounts which are to be deducted from the liable person’s earnings not to exceed a prescribed proportion of his earnings (as determined by the employer);]

(c)requiring an order to specify the amount or amounts to which the order relates and the amount or amounts which are to be deducted from the liable person’s earnings in order to meet his liabilities under the [F2maintenance 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 [F19Commission];

(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 [F19Commission] 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 [F19Commission] 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 [F19Commission], 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 [F19Commission], 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 [F2maintenance 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.

Textual Amendments

F18S. 32(2)(bb) inserted (3.3.2003 for specified purposes, 26.9.2008 for specified purposes, 27.10.2008 in so far as not already in force) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(a)(2), Sch. 3 para. 11(16) (with s. 83(6)); S.I. 2003/192, art. 3, Sch.; S.I. 2008/2545, art. 3(a)(b)

Modifications etc. (not altering text)

C6S. 32 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3; s. 32 applied (with modifications) (S.) (5.4.1993) by S.I. 1992/2643, reg.4

Commencement Information

I4S. 32 wholly in force; s. 32 not in force at Royal Assent see s. 58(2); s. 32(1)-(5)(7)-(9) in force at 17.6.1992 by S.I. 1992/1431, art. 2, Sch.; s. 32 in force in so far as not already in force at 5.4.1993 by S.I. 1992/2644, art. 2

33 Liability orders.E+W+S

(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 [F20Commission] 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 [F2maintenance calculation] in question.

(2)The [F20Commission] 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 [F20Commission] 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 [F2maintenance calculation] under which the payments of child support maintenance fell to be made.

[F21(5)If the [F20Commission] designates a liability order for the purposes of this subsection it shall be treated as a judgment entered in a county court for the purposes of [F22section 98 of the Courts Act 2003 (register of judgments and orders etc)].]

[F23(6)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.]

Textual Amendments

Modifications etc. (not altering text)

C7S. 33 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3

34 Regulations about liability orders.E+W+S

(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 [F24Commission] 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 [F25Commission].

(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 [F26Commission] has asked him to supply.

Textual Amendments

Modifications etc. (not altering text)

C8S. 34 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3

Commencement Information

I5S. 34 partly in force; s. 34 not in force at Royal Assent see s. 58(2); s. 34(1) in force at 17.6.1992 by S.I. 1992/1431, art. 2, Sch.

35 Enforcement of liability orders by distress.E+W

(1)Where a liability order has been made against a person (“the liable person”), the [F27Commission] 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 [F28Commission] may, in exercising [F29its] 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).

Textual Amendments

Modifications etc. (not altering text)

C9S. 35 applied (with modifications) (5.4.1993) by S.I. 1992/2643, reg.3

Commencement Information

I6S. 35 wholly in force; s. 35 not in force at Royal Assent see s. 58(2); s. 35(2)(b)(7)(8) in force at 17.6.1992 by S.I. 1992/1431, art. 2, Sch.; s. 35 in force in so far as not already in force at 5.4.1993 by S.I. 1992/2644, art. 2

36 Enforcement in county courts.E+W+S

(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 M1Charging Orders Act 1979.

Modifications etc. (not altering text)

C11S. 36 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3

Marginal Citations

37 Regulations about liability orders: Scotland.E+W+S

(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 [F30Commission].

(3)In this section “relevant information” has the same meaning as in section 34(2).

Textual Amendments

Modifications etc. (not altering text)

C13S. 37 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3

Commencement Information

I7S. 37 partly in force; s. 37 not in force at Royal Assent see s. 58(2); s. 37(1) in force at 5.4.1993 by S.I. 1992/2644, art. 2

38 Enforcement of liability orders by diligence: Scotland.E+W+S

(1)In Scotland, where a liability order has been made against a person, the order shall be warrant anywhere in Scotland—

(a)for the [F31Commission] to charge the person to pay the appropriate amount and to recover that amount by [F32an attachment] and, in connection therewith, for the opening of shut and lockfast places;

(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 [F33Commission].

(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.

Textual Amendments

F33Words in s. 38(1) substituted (temp.) (1.11.2008) by virtue of Child Maintenance and Other Payments Act 2008 (c. 6), s. 62(3), Sch. 3 para. 40(c); S.I. 2008/2675, art. 3(b)

Modifications etc. (not altering text)

C14S. 38 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3

39 Liability orders: enforcement throughout United Kingdom.E+W+S

(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 M2Sheriff 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.

Modifications etc. (not altering text)

C16S. 39 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3

Marginal Citations

[F3439A Commitment to prison and disqualification from driving.E+W+S

(1)Where the [F35Commission] 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 [F36it] 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)The [F35Commission] may make representations to the court as to whether [F37it] thinks it more appropriate to commit the liable person to prison or to disqualify him from holding or obtaining a driving licence; and the liable person may reply to those representations.

(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.]

Textual Amendments

F34S. 39A inserted (10.11.2000 for specified purposes, 2.4.2001 in so far as not already in force) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 16(1), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2000/3354, art. 2

Modifications etc. (not altering text)

40 Commitment to prison.E+W

F38(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 M3Magistrates’ 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.

[F39(12)This section does not apply to Scotland.]

Textual Amendments

F38S. 40(1)(2) repealed (10.11.2000 for specified purposes, 2.4.2001 in so far as not already in force) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 16(2), 86(1)(a)(2), Sch. 9 Pt. 1 (with s. 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2000/3354, art. 2

F39S. 40(12) substituted for s. 40(12)-(14) (10.11.2000 for specified purposes, 2.4.2001 in so far as not already in force) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 17(1), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2000/3354, art. 2

Modifications etc. (not altering text)

C17S. 40 applied (with modifications) (E.W.) (5.4.1993) by S.I. 1992/2643, reg.3

Commencement Information

I8S. 40 wholly in force; s. 40 not in force at Royal Assent see s. 58(2); s. 40(4)(a)(ii)(8)(11) in force at 17.6.1992 by S.I. 1992/1431, art. 2, Sch.; s. 40 in force in so far as not already in force at 5.4.1993 by S.I. 1992/2644, art. 2

Marginal Citations

[F4040A Commitment to prison: Scotland.S

(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.]

Textual Amendments

F40S. 40A inserted (10.11.2000 for specified purposes, 2.4.2001 in so far as not already in force) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 17(2), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2000/3354, art. 2

Modifications etc. (not altering text)

[F4140B Disqualification from driving: further provision.E+W+S

(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 [F42Commission] 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 [F42Commission] 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 [F42Commission] 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,

it shall send notice of that fact to the [F42Commission]; and the notice shall contain such particulars and be sent in such manner and to such address as the [F42Commission] may determine.

(9)Where a court makes a disqualification order, it shall also send the driving licence and its counterpart, on their being produced to the court, to the [F43Commission] at such address as [F44it] may determine.

(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).”]

Textual Amendments

F41S. 40B inserted (10.11.2000 for specified purposes, 2.4.2001 in so far as not already in force) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 16(3), 86(1)(a)(2) (with ss. 28, 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2000/3354, art. 2

Modifications etc. (not altering text)

41 Arrears of child support maintenance.E+W+S

(1)This section applies where—

(a)the [F45Commission] is authorised under section 4 F46... or 7 to recover child support maintenance payable by [F11a non-resident parent] in accordance with a [F2maintenance calculation]; and

(b)the [F11non-resident parent] has failed to make one or more payments of child support maintenance due from him in accordance with that [F5calculation].

[F47(2)Where the [F48Commission] recovers any such arrears [F49it] may, in such circumstances as may be prescribed and to such extent as may be prescribed, retain them if [F49it] 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 [F11non-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 [F2maintenance calculation] had effect from a date earlier than that on which it was made, the [F5calculation] shall be taken to have been in force at that time.]

F50(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F50(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F50(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Any sums retained by the [F51Commission] by virtue of this section shall be paid by [F52it] into the Consolidated Fund.

Textual Amendments

F5Word 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.

F11Words in Act substituted (31.1.2001 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(a)(2), Sch. 3 para. 11(2) (with s. 83(6)); S.I. 2000/3354, art. 2(1)(b); S.I. 2003/192, art. 3, Sch.

F47S. 41(2)(2A) substituted for s. 41(2) (1.10.1995) by Child Support Act 1995 (c. 34), s. 30(4), Sch. 3 para. 11; S.I. 1995/2302, art. 2, Sch. Pt. 2

F50S. 41(3)-(5) repealed (10.11.2000 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), ss. 18(1), 86(1)(a)(2), Sch. 9 Pt. 1 (with s. 83(6)); S.I. 2000/2994, art. 2, Sch. Pt. 1; S.I. 2003/192, art. 3, Sch.

Modifications etc. (not altering text)

C23S. 41(4) (as originally enacted) amended (14.7.2008 for specified purposes, 1.6.2009 in so far as not already in force) by Child Maintenance and Other Payments Act 2008 (c. 6), s. 62(3), Sch. 7 para. 1(34)(a); S.I. 2008/1476, art. 2(3)(b)(4)(5); S.I. 2009/1314, art. 2(2)(b)(i)

Commencement Information

I9S. 41 wholly in force; s. 41 not in force at Royal Assent see s. 58(2); s. 41(2)-(4) in force at 17.6.1992 by S.I. 1992/1431, art. 2, Sch.; s. 41 in force in so far as not already in force at 5.4.1993 by S.I. 1992/2644, art. 2

[F5341A Penalty payments.E+W+S

(1)The Secretary of State may by regulations make provision for the payment to [F54the 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 [F55Commission].

(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 [F56Commission] 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)The [F57Commission] shall pay penalty payments received by [F58it] into the Consolidated Fund.]

Textual Amendments

F53S. 41A 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. 18(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. (note that Child Support Act 1995 (c. 34), s. 22, which inserted s. 41A of this Act, was never brought into force)

Modifications etc. (not altering text)

C24S. 41A (as originally enacted) amended (14.7.2008 for specified purposes, 1.6.2009 in so far as not already in force) by Child Maintenance and Other Payments Act 2008 (c. 6), s. 62(3), Sch. 7 para. 1(34)(a); S.I. 2008/1476, art. 2(3)(b)(4)(5); S.I. 2009/1314, art. 2(2)(b)(i)

[F5941B Repayment of overpaid child support maintenance.E+W+S

(1)This section applies where it appears to the [F60Commission] that [F11a non-resident parent] has made a payment by way of child support maintenance which amounts to an overpayment by him of that maintenance and that—

(a)it would not be possible for the [F11non-resident parent] to recover the amount of the overpayment by way of an adjustment of the amount payable under a [F2maintenance calculation]; or

(b)it would be inappropriate to rely on an adjustment of the amount payable under a [F2maintenance calculation] as the means of enabling the [F11non-resident parent] to recover the amount of the overpayment.

[F61(1A)This section also applies where the non-resident parent has made a voluntary payment and it appears to the [F62Commission] —

(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 [F63it] that subsection (1)(a) or (b) applies.]

(2)The [F64Commission] may make such payment to the [F11non-resident parent] by way of reimbursement, or partial reimbursement, of the overpayment as the [F64Commission] considers appropriate.

(3)Where the [F65Commission] has made a payment under this section [F66it] may, in such circumstances as may be prescribed, require the relevant person to pay to [F67it] the whole, or a specified proportion, of the amount of that payment.

(4)Any such requirement shall be imposed by giving the relevant person a written demand for the amount which the [F68Commission] wishes to recover from him.

(5)Any sum which a person is required to pay to the [F68Commission] under this section shall be recoverable from him by the [F68Commission] as a debt due to the Crown.

(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 [F69Commission] by the relevant person; and

(b)child support maintenance has continued to be payable by the [F11non-resident parent] concerned to the person with care concerned, or again becomes so payable.

[F70(7)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)Any sum recovered by the [F71Commission] under this section shall be paid by [F72it] into the Consolidated Fund.]

Textual Amendments

F11Words in Act substituted (31.1.2001 for specified purposes, 3.3.2003 for specified purposes) by Child Support, Pensions and Social Security Act 2000 (c. 19), s. 86(1)(a)(2), Sch. 3 para. 11(2) (with s. 83(6)); S.I. 2000/3354, art. 2(1)(b); S.I. 2003/192, art. 3, Sch.

F59S. 41B inserted (4.9.1995 for specified purposes, 1.10.1995 for specified purposes) by Child Support Act 1995 (c. 34), ss. 23, 30(4); S.I. 1995/2302, art. 2, Sch. Pts. 1, 2

F61S. 41B(1A) 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(3), 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.

F70S. 41B(7) 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. 20(4), 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.

Modifications etc. (not altering text)