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Child Maintenance and Other Payments Bill

I am just about to cover that. The Child Support Agency, or the commission in the future, will make an application to the court based on a determination of the facts at hand. Where the agency or the commission are aware of the non-resident parent’s occupation, this factor will be taken into account in determining whether an application will be made for disqualification. The CSA or the commission is highly unlikely to ask the court to disqualify the non-resident parent from driving if the non-resident parent’s ability to earn a living would be seriously affected. This would not be in the best long-term interests of the children and it would be against the commission’s main objective. Ultimately, however, it will be the court’s decision. The court has the power to summon the non-resident parent, to issue a warrant should he or she fail to appear, and to inquire in that person’s presence whether he or she needs a driving licence to earn a living, before it reaches a decision. I should also point out that the existing driving licence provisions have been in operation since 2001. In the vast majority of cases, the non-resident parent receives an actual or suspended sentence. Clause 28 simply restructures existing provisions. Amendment No. 187 would enable the Secretary of State to make regulations allowing the commission to recover maintenance payments from non-resident parents who have moved outside the United Kingdom and do not remain in the commission’s jurisdiction by virtue of Section 44 of the Child Support Act 1991—an issue raised by the noble Lord, Lord Kirkwood, in some detail. That section gives the CSA currently, and the commission in the future, jurisdiction where all parties to the maintenance calculation are resident in the United Kingdom, except in prescribed circumstances where the non-resident parent may reside abroad but is employed in the services of the Crown; in the forces, including as a reservist; by a company registered in the UK; or by a body of prescribed description. I agree that it would not be right for non-resident parents outside these limited exemptions to escape their financial obligations towards their children by moving abroad, but I am pleased to inform noble Lords that this is generally not the case. The United Kingdom has a system for administering international child and spousal maintenance cases. There are a number of international conventions and agreements—the noble Lord, Lord Kirkwood, referred to these—which allow maintenance claims from UK-resident parents to secure payments from non-resident parents who move abroad. International agreements include the Hague conventions and EU law, and of course arrangements are established under the Maintenance Orders (Reciprocal Enforcement) Act 1972. In essence, the system works by UK courts sending details of the maintenance liability to a foreign jurisdiction where the claimant is resident in the UK. The foreign jurisdiction then applies its domestic collection and enforcement mechanisms to recover the amount due. Those mechanisms in turn refer the maintenance received to the claimant. The process is reversed where the debtor is resident in the UK and the claimant resides outside. Where a non-resident parent is or moves outside the Child Support Agency’s jurisdiction, a maintenance calculation cannot be made or pursued. The parent with care must then either reach an agreement for maintenance provisions with the non-resident parent or apply to their local magistrates’ court or family proceedings court to secure maintenance from an ex-partner living abroad. The UK has reciprocal agreements with over 100 states and territories to enable such claims to be made and recently established a new bilateral agreement with the USA to extend the arrangements there. There is currently an EU proposal for a new regulation—referred to by the noble Lord, Lord Kirkwood—on such claims in Europe, which the UK hopes to be able to opt into at the conclusion of negotiations. I have no precise data on when we expect those negotiations to be concluded. I am also pleased to inform the Committee that a new global Hague convention on family maintenance was successfully concluded in November 2007, which we hope will further extend the coverage of such arrangements in the future. I realise that Members of the Committee may be concerned about what happens to any outstanding arrears that the non-resident parent may owe when he or she moves outside the commission’s jurisdiction. I do, of course, have the greatest sympathy with parents with care who find themselves in this situation, but it would not be possible for the commission to take direct action to recover the money owed, nor could the arrears be included within any subsequent international maintenance order made through the courts. I am sure that Members of the Committee will understand that we cannot apply UK domestic legislation across international boundaries. We could not, for example, give the commission the power to apply a deduction from earnings order against any person where the employer is not registered as a company within the UK. It is simply not possible. Nor is it currently possible under the terms of the 1972 Act to include arrears of child maintenance accrued in the UK within an international maintenance order. We do not, however, rule anything out in the longer term; this may be something that we can address at a future legislative opportunity. It may also be the case that, should the non-resident parent have any property within the United Kingdom, the CSA or the commission could apply for a charging order against that property, notwithstanding the fact that the non-resident parent may reside outside the UK. We will certainly continue to investigate that possibility. I hope that Members of the Committee will appreciate that an adequate system for dealing with non-resident parents who move abroad already exists, albeit with the caveat concerning arrears that I have just mentioned Amendment No. 213 would give the appeals tribunal the power to question the underlying maintenance calculation when considering a liability order appeal. By the time a liability order is made, the non-resident parent will already have had opportunity to appeal to the tribunal against the maintenance calculation at the point when it was made; there are also provisions for late appeals. This amendment would allow the non-compliant non-resident parent a second bite at the cherry. It could delay enforcement action and be additional work for the appeals tribunals. We are, however, putting appropriate safeguards in place by providing appeal rights based on those matters that magistrates can currently consider when making a court liability order. The appeals tribunal will have the opportunity to question whether the person is liable, whether they have failed to pay an amount of child maintenance and if the amount of the liability order exceeds the amount of maintenance owing. It is important to remember that a liability order is made because the non-resident parent has failed to pay. If we give them another opportunity to challenge the maintenance calculation, it will be another opportunity to delay payment for their children. We know, sadly, that some will use every opportunity to do that. Finally, on the Government’s Amendment No. 219, following concerns raised over the recovery of historic debt as this Bill has progressed through the other place, we are introducing this amendment to ensure that all new and existing powers to collect child maintenance can be used on debts of any age. We have previously amended regulations so that there is no longer a six-year time limit for an application for a liability order on debt that accrued on or after 13 July 2000. However, some debt had already reached six years of age before then and so is still subject to a limitation period. We estimate that this pre-July 2000 debt accounts for more than £700 million. It can currently be collected only through a deduction-from-earnings order and not through court-based recovery methods. The amendment ensures that, when the provision for the new administrative liability order comes into force, the same enforcement mechanisms—liability orders, deduction orders, deduction-from-earnings orders—can be available for use on all child maintenance debt regardless of the date on which it accrued. However, the new administrative liability order will not be used in relation to pre-July 2000 debt as a matter of course. Because this debt was previously time-barred as far as court action was concerned, it will be important to consider in each case whether enforcement action is justified. I shall speak as briefly as I can to the issues raised under clause stand part and deal first with Clause 26 and curfew orders. As both my noble friend Lady Hollis and the noble Lord, Lord Kirkwood, recognised, those are at the extreme end of our enforcement process, but they are important. Clause 26 enables the Child Maintenance Enforcement Commission to make an application to the court for a curfew order where the non-resident parent wilfully refuses or culpably neglects to pay maintenance. Curfew orders are intended to serve as an effective alternative to committal. They should not interfere with the non-resident parent’s ability to earn a living and should allow him or her to continue with any pre-existing contact or custody arrangement with the children. That is an important point. At the same time, however, they will provide a powerful incentive to co-operate. Furthermore, it is envisaged that the use of such powers will contribute to changing the culture of non-compliance and demonstrate that the commission will take strong measures to deal with it swiftly. The length of the curfew order will be at the discretion of the court. Electronic monitoring has been operating throughout England and Wales since 1999 and is run by private companies. About 15,500 persons are subject to electronic monitoring at any one time; about 58 per cent of people complete a curfew order successfully without any enforcement action being applied.