The International Recovery of Maintenance (Hague Convention 2007 etc.) Regulations 2012

Regulation 6

SCHEDULE 2 E+W+S ENFORCEMENT OF INTERNATIONAL MAINTENANCE ORDERS – DRIVING DISQUALIFICATION ORDERS

Application E+W+S

1.  The provisions of this Schedule apply in relation to the enforcement of a maintenance decision relating to a child where that maintenance decision is registered for enforcement, or enforceable, by virtue of—

(a) the Council Regulation;

(b) the Lugano Convention;

(c) the Maintenance Regulation; or

(d) the Convention.

Interpretation E+W+S

2.—(1) In this Schedule—

“the 1980 Act” means the Magistrates' Courts Act 1980;

“the Council Regulation” means Council Regulation (EC) No 44/2001 M1 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;

“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters signed on behalf of the European Community on 30th October 2007 M2 ;

“arrears” means a sum or sums payable to the creditor from the debtor which have fallen due under the terms of a maintenance decision and which the debtor has not paid;

“the court” means—

• in England and Wales, a magistrates' court;

• in Scotland, the sheriff court;

“the creditor” means a person to whom a sum or sums of maintenance are owed by the debtor under the terms of a maintenance decision in relation to which an application under this Schedule is made, and includes—

• a public body acting in place of an individual to whom maintenance is owed or to which reimbursement is owed for benefits provided in place of maintenance, to the extent that such a body may seek enforcement of a maintenance decision under the terms of an international agreement referred to in paragraph 1; and

• where there is in force an order that the sum or sums of maintenance be paid to the designated officer of a magistrates' court, that officer.

“the debtor” means the person who is liable to pay a sum or sums to the creditor under the terms of the maintenance decision in relation to which a complaint referred to in paragraph 3(2) or an application referred to in paragraph 4(1) of this Schedule is made;

“driving disqualification order” means an order under paragraph 5(1)(a) of this Schedule;

“maintenance decision” means a maintenance obligation to which an international agreement mentioned in paragraph 1 applies and which is—

• in England and Wales, [F1 a maintenance order enforceable in the family court];

• in Scotland, a maintenance order within the meaning of section 106 of the Debtors (Scotland) Act 1987 M3 .

(2) In this Schedule—

(a) “child” means a person who—

(i) either—

(aa) has not attained the age of 16, or

(bb) has not attained the age of 20, and is receiving full time education or vocational training; and

(ii) is not or has not been party to a marriage, to a civil partnership or to an overseas relationship treated as a civil partnership under section 215 of the Civil Partnership Act 2004, and for the purposes of sub-paragraph (ii) “marriage” and “civil partnership” include a void marriage and a void civil partnership respectively;

(b) (i) “driving licence” means a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988 M4 ;

(ii) references to “driving licence” in paragraphs 7, 10(1) and 11 include a reference to its counterpart within the meaning of section 108(1) of the Road Traffic Act 1988 M5 , pending repeal of that definition by the Road Safety Act 2006 M6 ;

F2 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Words in Sch. 2 para. 2(1) substituted (22.4.2014) by The Crime and Courts Act 2013 (Family Court: Consequential Provision) (No.2) Order 2014 (S.I. 2014/879), arts. 1(1), 142(a)

F2 Sch. 2 para. 2(2)(c) omitted (22.4.2014) by virtue of The Crime and Courts Act 2013 (Family Court: Consequential Provision) (No.2) Order 2014 (S.I. 2014/879), arts. 1(1), 142(b)

Marginal Citations

M1 OJ No. L12, 16.1.2001 p.1-23.

M2 OJ No. L 339, 21.12.2007 p.3

M3 1987 c.18. Section 106 was amended by S.I. 2011/1484.

M4 1988 c.52.

M5 The definition of “counterpart” was inserted in section 108(1) by regulation 2 and paragraph 19 of Schedule 2 to S.I. 1996/1974 and repealed from a date to be appointed by sections 10(12) and 59, and paragraphs 2 and 14 of Schedule 3 to, and Schedule 7 to, the Road Safety Act 2006 (c.49).

M6 2006 c.49.

Application for a driving disqualification order – England and Wales E+W+S

3.—(1) This paragraph applies to England and Wales only.

[F3 (2) Where payment under a maintenance decision is in arrears, the court may make a driving disqualification order on complaint made by a creditor.]

[F4 (2A) A complaint under sub-paragraph (2) shall not be made earlier than the fifteenth day after the making of the maintenance decision to which it relates, but subject to this such a complaint may be made at any time.

(2B) Section 55 of the 1980 Act shall not apply in relation to a complaint under sub-paragraph (2).

(2C) Section 56 of the 1980 Act shall have effect in relation to a complaint under sub-paragraph (2) as if the words “if evidence has been received on a previous occasion” were omitted.

(2D) Sub-paragraph (2E) applies where, at the time and place appointed for the hearing or adjourned hearing of a complaint under sub-paragraph (2), the complainant appears but the defendant does not.

(2E) The court may proceed in the absence of the defendant if—

(a) it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed in rules of court, that the summons was served on the defendant within what appears to the court to be a reasonable time before the hearing or adjourned hearing; or

(b) the defendant has appeared on a previous occasion to answer the complaint.

(2F) If a complaint under sub-paragraph (2) is substantiated on oath, any justice of the peace acting in the same local justice area as a court having jurisdiction to hear the complaint may issue a warrant for the defendant’s arrest, whether or not a summons has been issued previously.]

(3) The court shall not make a driving disqualification order—

(a) in the absence of the debtor;

(b) if it considers that, in a case in which it has power to do so, it is appropriate to—

(i) make an attachment of earnings order;

(ii) make an order under [F5 section 59(4)] of the 1980 Act; or

(iii) issue a warrant of control for the purpose of recovering the arrears under section 76(1) M7 of that Act;

(c) unless either—

(i) the creditor has sought to obtain a charging order or a third party debt order in respect of the arrears and the arrears or any portion of them remain unpaid; or

(ii) the debtor has no assets in England and Wales which are susceptible to such methods of enforcement.

(4) Pending the entry into force of section 62 of, and Schedule 12 to, the Tribunals, Courts and Enforcement Act 2007 M8 , the reference in sub-paragraph (b)(iii) to obtaining a warrant of control is to be read as a reference to obtaining a warrant of distress.

Textual Amendments

F3 Sch. 2 para. 3(2) substituted (22.4.2014) by The Crime and Courts Act 2013 (Family Court: Consequential Provision) (No.2) Order 2014 (S.I. 2014/879), arts. 1(1), 143(a)

F4 Sch. 2 para. 3(2A)-(2F) inserted (22.4.2014) by The Crime and Courts Act 2013 (Family Court: Consequential Provision) (No.2) Order 2014 (S.I. 2014/879), arts. 1(1), 143(b)

F5 Words in Sch. 2 para. 3(3)(b)(ii) substituted (22.4.2014) by The Crime and Courts Act 2013 (Family Court: Consequential Provision) (No.2) Order 2014 (S.I. 2014/879), arts. 1(1), 143(c)

Marginal Citations

M7 Section 76(1) is amended by section 62(3) and paragraphs 45 and 46 of Schedule 13 to the Tribunals Courts and Enforcement Act 2007 (c.15) from a date to be appointed.

M8 2007 c.15.

Application for a driving disqualification order – Scotland E+W+S

4.—(1) In Scotland, the creditor may, by summary application, apply to the court for a driving disqualification order where the conditions mentioned in sub-paragraphs (2), (3) and (4) are met.

(2) The first condition is that arrears have arisen under the maintenance decision.

(3) The second condition is that—

(a) a diligence against earnings listed in section 46(1) of the Debtors (Scotland) Act 1987 has been executed or made under Part 3 of that Act to secure the payment of sums due under the maintenance decision and it has proved ineffective as a means of securing that payments are made in accordance with the maintenance decision; or

(b) such diligence against earnings is inappropriate because the debtor is unemployed or otherwise has no earnings which could be the subject of a diligence against earnings.

(4) The third condition is that the creditor has sought to recover the arrears by—

(a) an attachment;

(b) an arrestment; or

(c) an inhibition,

and the arrears or any portion of them remain unpaid or the debtor has no assets in Scotland which are susceptible to the methods of enforcement mentioned in this sub-paragraph.

Making of a driving disqualification order E+W+S

5.—(1) If, but only if, the court is of the opinion that the failure to pay the arrears is due to wilful refusal or culpable neglect on the part of the debtor, it may—

(a) make an order (a driving disqualification order) disqualifying the debtor from holding or obtaining a driving licence for such period specified in the order, not exceeding two years, as it thinks fit; or

(b) make a driving disqualification order but suspend its operation until such time and on such conditions (if any) as it thinks just.

(2) The court shall not make a driving disqualification order unless it has enquired, in the presence of the debtor, as to—

(a) the debtor's means;

(b) whether the debtor needs a driving licence to earn his or her living; and

(c) whether the failure to pay the arrears is due to wilful refusal or culpable neglect on the part of the debtor.

6.  A driving disqualification order must state the amount of arrears in respect of which it is made and the period to which they relate and the amount may not exceed the arrears owing under the maintenance decision at the date on which the complaint referred to in paragraph 3 or the application under paragraph 4 was made. E+W+S

7.  A court which makes a driving disqualification order shall require the person to whom it relates to produce any driving licence held by that person. E+W+S

8.—(1) The court shall not, in relation to arrears— E+W+S

(a) make a driving disqualification order during the currency of a warrant committing the debtor to prison in respect of the same arrears;

(b) issue a warrant committing the debtor to prison where a driving disqualification order has been made in respect of the same arrears but the period of disqualification specified in the driving disqualification order has not expired.

(2) In sub-paragraph (1)—

(a) references to a warrant committing the debtor to prison include such a warrant which has been postponed;

(b) references to a driving disqualification order include such an order which has been suspended in accordance with paragraph 5(1)(b); and

(c) references to the currency of a warrant, or to the period of disqualification specified in a driving disqualification order, are to be read as including references to the period of postponement of a warrant or suspension of disqualification respectively.

Variation, revocation and expiry of driving disqualification order E+W+S

9.—(1) On application by the creditor or the debtor, the court—

(a) may, if part of the amount in respect of which the order is made is paid to any person authorised to receive it, make an order substituting a shorter period of disqualification, or revoking the driving disqualification order; and

(b) must, if the whole of the amount is so paid, make an order revoking the driving disqualification order.

(2) An application under sub-paragraph (1) shall be made—

(a) in England and Wales, by complaint;

(b) in Scotland, by summary application.

10.  Upon the making of a further complaint under [F6 paragraph 3(2) of this Schedule] or application under paragraph 4 of this Schedule, the court may make a further driving disqualification order if the arrears in respect of which the driving disqualification order was made have not been paid in full when the period of disqualification specified in that order expires. E+W+S

Textual Amendments

F6 Words in Sch. 2 para. 10 substituted (22.4.2014) by The Crime and Courts Act 2013 (Family Court: Consequential Provision) (No.2) Order 2014 (S.I. 2014/879), arts. 1(1), 144

Notification to the Secretary of State E+W+S

11.  Where a court—

(a) makes a driving disqualification order; or

(b) makes an order varying or revoking a driving disqualification order,

it shall send notice of that fact and any driving licence produced to the court to the Secretary of State.

Production of driving licence in England and Wales E+W+S

12.  In England and Wales, a justice of the peace may issue a summons to the debtor to produce to a magistrates' court any driving licence held by the debtor, and issue a warrant for the debtor's arrest if the debtor does not comply.

Procedure on an application for a driving disqualification order in Scotland E+W+S

13.  In Scotland, the power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court includes the power to make, in relation to driving disqualification orders made under this Schedule, provision—

(a) as to the form of any order issued under this Schedule;

(b) allowing an application under this Schedule to be renewed where no order is issued;

(c) that a statement in writing to the effect that wages of any amount have been paid to the debtor during any period, purported to be signed by or on behalf of the debtor's employer, is sufficient evidence of the facts stated;

(d) that, for the purposes of enabling an inquiry to be made as to the debtor's conduct and means, the sheriff may issue a citation to the debtor to appear before the sheriff and (if the debtor does not obey) may issue a warrant for the debtor's arrest;

(e) that, for the purposes of enabling such an inquiry, the sheriff may issue a warrant for the debtor's arrest without issuing a citation;

(f) as to the execution of a warrant of arrest.