New child support rules coming into force on 14th December 2018 give specific powers to the Child Maintenance Service (CMS) to pursue arrears.
Removal of driving licence or committal to prison
Since the Child Support Act 1991 came into effect, the CMS (and the Child Support Agency before that) has had a sizeable proportion of child support arrears which it makes efforts to recover. It has a number of effective legal tools over and above 'routine' debt recovery which it can use.
Removal of a driving licence for a period up to two years or imprisonment for a period up to six weeks have been standard options used by CMS and they have been effective in reducing the overall debt owed in respect of unpaid child support.
Removal of passport
New provisions effective from the 14th December 2018 mean that the CMS can now seek disqualification for holding or obtaining travel authorisation – effectively the surrender and removal of a passport.
Imagine the scene at the airport check-in: Mum, Dad and the children are heading off on holiday, but find that due to child support arrears for a first family, one of the parents can't go because their passport is not valid. If ever there was an incentive needed to pay child support, this is it. The legislation applies equally to both male and female parents, although the vast majority of non-resident parents are men.
In practice, it is highly unlikely to get to the stage of check-in queues. There is, naturally, a process to go through, so no one in the check-in line should be in any doubt of their validity to travel.
Before we get to surrender of passports there has to be a liability order. This is effectively a court order for the sum due. Additionally, there then has to be a court application by CMS for the removal of the passport. This follows, more or less, the same guidelines as the rules in place for removal of driving licences and committal to prison.
The court requires to enquire into:-
1. Whether the person needs a travel authorisation to earn a living. One view might be that the court will be less likely to make such an order if the passport is needed for work, thus depriving a person from earning a living. Conversely however, common sense dictates that a person will be more incentivised to clear arrears if their job is at risk.
2. The person's means, essentially income and expenditure.
3. Whether there has been wilful refusal or culpable neglect on the part of the person. In other words, has the person deliberately not paid, as opposed to not being able to afford to pay.
In the case of driving licences and the even more draconian six weeks in prison, there have been many actions turning on the reasons for non-payment. Critically however, one very significant point the court cannot consider is whether the assessment (that is the weekly amount to be paid) underpinning the whole process is wrong. Yet that is the reason most commonly cited for non-payment. Other procedures are available for challenging the assessment itself, so even if wrong, that is not a defence to an action for removal of travel authorisation, driving licence or committal to prison.
Other changes to child support regulations include the CMS now being able to take into account assets exceeding a prescribed value. This relates to non-resident parents who have either only unearned income or no income at all. The child support process is focused on earnings from employment. For those who have little or no income, the system just does not work effectively. Even dividend income for self-employed or company directors is not straightforward for CMS to manage.
The new regulations provide that if the non-resident parent has an asset over the prescribed value (£31,250 currently) then the 'weekly value' of that asset can be taken into account. Importantly this will include an asset subject to a Trust where the non-resident parent is a beneficiary. Equally important, the primary residence of the non-resident parent or any child of the non-resident parent is not to be counted in such circumstances.
A date for the coming into force of this regulation has not yet been fixed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.