Commentary on Sections
Disqualification from driving
Section 16: Disqualification from driving
191.Currently section 40 of the Child Support Act 1991, which applies only in England and Wales, enables the Secretary of State to apply to a magistrates’ court for the issue of a warrant committing a non-resident parent to prison where distress action, garnishee proceedings or a charging order have failed to recover some, or all, of the child support maintenance outstanding.
192.If the court is satisfied that there has been wilful refusal or culpable neglect, it may issue a warrant for committal to prison for a maximum period of six weeks, or suspend the sentence. It has previously been held that the term “wilful refusal or culpable neglect” means that the conduct of the non-resident parent must amount to deliberate defiance or reckless disregard. The non-resident parent may be released from prison on payment of the amount stated on the warrant or have the period reduced for part payment.
193.This section provides for a disqualification order to be made in relation to holding or obtaining a driving licence as an alternative to committal. Subsections (2) and (3) amend section 40 (the provision for committal) and insert a new section 40B (the further provision of disqualification from driving).
194.Subsection (1) inserts a new section 39A in the 1991 Act.
New section 39A: Commitment to prison and disqualification from driving
195.New section 39A(1) provides that this section applies where the Secretary of State has tried to obtain the amount outstanding by distress or enforcement through the county or sheriff courts.
196.New section 39A(2) provides for the courts to be able to consider either committal or disqualification from driving.
197.New section 39A(3) provides for the courts to consider:
whether a driving licence is needed by the liable person to earn a living;
the financial circumstances of the liable person; and
whether there has been wilful refusal or culpable neglect.
198.New section 39A(4) provides for the Secretary of State and the liable person to make representations to court on which penalty should be imposed.
199.New section 39A(5) defines “driving licence”.
200.New section 39A(6) defines “court”.
201.Subsection (2) of section 16 amends section 40 of the 1991 Act which provides for committal by omitting subsections (1) and (2) which set out the present powers of the court and what must be considered. These matters are now covered by the new section 39A(1) and (3) above.
202.Subsection (3) provides for a new section 40B to be inserted before section 41.
New section 40B: Disqualification from driving: further provision
203.New section 40B(1) provides a power for the court to disqualify the liable person from driving if the courts agree that he has wilfully refused to pay or been guilty of culpable neglect in connection with paying maintenance.
(1)(a) provides for the disqualification order to apply for a period not exceeding two years.
(1)(b) provides that the disqualification order may be suspended.
204.New section 40B(2) provides that the courts cannot make both a disqualification order and warrant for committal at the same time.
205.New section 40B(3) provides that the order should include the amount of the arrears included in the liability order and the court costs.
206.New section 40B(4) provides for the courts to require the liable person to produce his driving licence (defined in section 108(1) of the Road Traffic Act 1988).
207.New section 40B(5) provides that the courts may lift the order, or substitute a shorter disqualification period, if part of the amount outstanding is paid, and must revoke the disqualification if payment is made in full before the end of the disqualification period.
208.New section 40B(6) provides for the Secretary of State to be able to give his views to the court on the amount that should be paid before the disqualification order is lifted. It also provides for the liable person to reply to the representations.
209.New section 40B(7) provides for a further application to be made to the courts if any amount remains outstanding at the end of the disqualification period.
210.New section 40B(8) provides for the court, on imposing the disqualification, to notify the Secretary of State of the fact that a disqualification order has been made, amended or lifted, and the new section 40B(9) provides that a licence produced to the court should be sent to the Secretary of State. In practice, the notice and the licence will be sent to the DVLA.
211.New section 40B(10) provides for section 80 of the Magistrates Court Act 1980 to apply to a disqualification order, to reflect provisions currently in section 40. This will enable a liable person to be searched in court and money found applied against the amount owing.
212.New section 40B(11) provides for regulations to be made, prescribing the way in which disqualification orders will operate, and new section 40B(12) modifies this section in its application to Scotland.
213.Subsections (4) and (5) of section 16 provide for references to the disqualification to be made in the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988. This will enable the police to require production of the licence if it is not given to the courts. Failure to produce the licence in these circumstances is a criminal offence punishable by a fine of up to £1,000.
Section 17: Civil Imprisonment: Scotland
214.Subsection (1) provides that section 40 does not apply to Scotland.
215.Subsection (2) inserts new section 40A into the 1991 Act. The new section provides the procedure for the sheriff to follow if he is satisfied that it is appropriate to commit a liable person to prison. The new section is comparable in its scope to section 40 of the 1991 Act for England and Wales (see the introduction to section 16).
New section 40A: Commitment to Prison – Scotland
216.New section 40A(1) provides that where the sheriff is satisfied that the liable person has wilfully refused or culpably neglected to pay, the sheriff may issue a warrant for his committal to prison or may fix a term of imprisonment but postpone the committal of the liable person to prison. The sheriff may impose conditions on the postponement, for example, that the liable person makes regular payments of maintenance.
217.New section 40A(2) provides that the warrant which the sheriff issues will be in respect of the arrears of maintenance and the Secretary of State’s expenses in raising the proceedings for committal to prison. The warrant must state what the total amount is.
218.New section 40A(3) prohibits a warrant being issued in respect of a person who is under 18 years of age.
219.New section 40A(4) provides that the warrant will order the imprisonment of the liable person for a specified period but that he may be released on payment of the amount stated in the warrant – unless he is in custody for some other reason.
220.New section 40A(5) provides that the maximum period of imprisonment is 6 weeks.
221.New section 40A(6) gives the Secretary of State power in regulations to provide for the period of imprisonment to be reduced where the outstanding amount has been partly paid.
222.New section 40A(7) provides that the warrant may be directed to such person as the sheriff thinks fit.
223.New section 40A(8) gives the Court of Session power to make subordinate legislation regulating practice and procedure in the Sheriff Court in relation to civil imprisonment for child support purposes. The power will be exercised through Rules of Court made in Acts of Sederunt. The Court of Session will have power to make provision:
about the form of any warrant issued;
with respect to renewing applications where no warrant is issued or no term of imprisonment has been fixed;
that an employer’s statement about a liable person’s wages is to be sufficient evidence of the amount of those wages;
for the sheriff citing a liable person to appear before him for the purposes of an inquiry into the liable person’s behaviour and means; and, if the liable person does not obey the citation, for the sheriff issuing a citation for him to appear before the sheriff and, if necessary, warrant for his arrest;
for the sheriff issuing a warrant for the liable person’s arrest, without issuing a citation, for the purposes of enabling the inquiry into his means and conduct to be heard;
as to the execution of the warrant of arrest.
