Section 28: Curfew orders
257.Section 28 inserts ten new sections, 39H, 39I, 39J, 39K, 39L, 39M, 39N, 39O, 39P and 39Q, into the Child Support Act 1991 and provides the Commission with a power to apply to a magistrates’ court (or, in Scotland, the sheriff) for a curfew order to be made against a non-resident parent who fails to pay maintenance.
258.The new section 39H enables the Commission to apply to the court for a curfew order against a non-resident parent if:
it has sought to recover the arrears through the use of bailiffs (in England and Wales), or diligence action (in Scotland) or by means of a third party debt order or charging order;
the whole or any part of the arrears remains unpaid; and
it is of the opinion that the non-resident parent has wilfully refused or culpably neglected to pay maintenance.
259.Subsection (2)of section 39H provides that the Commission is to be taken as having sought to recover arrears through a charging order if an interim charging order is in place, whether or not further action has been taken to recover the amount.
260.Subsection (3) requires the court to inquire (in the presence of the non-resident parent against whom the liability order has been made) about that person’s means, and whether they have wilfully refused or culpably neglected to pay the child support maintenance for which they are liable.
261.Subsection (4) prevents a court, when considering an application for a curfew, from questioning the liability order on which an application for a curfew order has been made, or the original maintenance calculation which is the basis of the liability order.
262.Subsection (5) prevents the court from making a curfew order, unless it is of the opinion that the non-resident parent has wilfully refused or culpably neglected to pay maintenance.
263.Subsection (6) prevents the court from making an order against a person who is under the age of eighteen.
264.Subsection (7) provides that for the purposes of this section and sections 39I to 39O the ‘court’ means magistrates’ court in England and Wales, and the sheriff in Scotland.
265.Section 39I concerns the duration of a curfew order.
266.Subsection (1) of section 39I stipulates that a curfew order must be limited to between two and twelve hours in any one day, but may include different periods and different places for different days.
267.Subsections (2) and (3) require the period of the curfew to be specified in the order, that it not last for more than six months and that it begin on the day the order is made unless otherwise specified.
268.Subsection (4) ensures that the curfew imposed does not conflict (so far as practicable) with the non-resident parent’s religious beliefs or interfere with the times at which they normally work or attend any educational establishment.
269.Subsection (5) prevents a magistrates’ court from specifying a curfew location outside England and Wales, and a sheriff from specifying a curfew location outside Scotland.
270.Section 39J provides that where a curfew order has been made, the court shall also make an order requiring the non-resident parent for whom the order has been made, to pay an amount in respect of the costs of the application and the monitoring of the curfew order.
271.Subsection (2) of section 39J provides that the powers available for the Commission to collect and enforce child support maintenance also apply to the recovery of costs incurred in making an order under this section.
272.Section 39K sets out provisions about the relationship between the amount of maintenance outstanding and the curfew order imposed.
273.Subsection (1) of section 39K stipulates that a curfew order will be made in respect of an amount of money which totals both the amount sought to be recovered which remains outstanding, and the costs ordered by the court under section 32J in relation to the application for a curfew order and monitoring compliance with that order.
274.Where part of the amount in respect of which a curfew order has been made is paid to any person authorised to receive it, subsection (2) allows the court (on application by either the non-resident parent or the Commission) discretion to:
reduce the period the curfew order is in place;
allow the curfew to start on a day later than the day the order would otherwise begin to run;
suspend the curfew or extend any existing suspension; or
revoke the curfew order.
275.Subsection (3) enables the start date for a curfew, or the ability to suspend it, to be subject to specified conditions.
276.Where a non-resident parent has paid some of the arrears, subsection (4) allows the Commission to make representations to the courts as to which of the powers conferred by subsection (2) should be exercised. The non-resident parent may reply to such representations.
277.Subsection (5) requires the court (on application by the non-resident parent or the Commission) to revoke a curfew order if the whole amount specified in the curfew order has been paid by the non-resident parent to any person authorised to receive it.
278.Subsection (6) enables the Commission to make a further application to the court if by the end of the curfew period the amount specified in the order has not been paid in full.
279.Section 39L provides a power for the court to order the search of a non-resident parent in respect of whom a curfew order has been made.
280.Subsection (2) of section 39L sets out that during a search, any money found on a non-resident parent shall (unless the court otherwise directs) be taken by the court and put towards the amount specified in the curfew order (the balance, if any, would be returned to the person searched).
281.Subsection (3) prevents the court from taking any money if it is satisfied that it does not belong to the person searched.
282.Subsection (4) gives some flexibility to the court enabling it to exercise its powers to postpone, suspend or revoke the order or reduce the period for which it is in place (under section 39K(2)) without the need for a separate application, where money is found and put towards the amount owed by the non-resident parent.
283.Section 39M sets out the provisions relating to how a curfew will be monitored.
284.Subsection (1) of section 39M requires the non-resident parent’s compliance with a curfew order to be monitored by a person or body specified in the order.
285.Subsection (2) prevents the court from imposing a curfew order unless:
it has been notified by the Commission that suitable monitoring arrangements are available in the place specified in the order;
it is satisfied with those arrangements; and
it has the consent of any third party whose co-operation is necessary for monitoring the curfew order, for example, a landlord who must give permission for a monitoring system to be installed in the home of a non-resident parent.
286.Where a third party’s consent can not be obtained, subsection (3) enables the court to treat the application for a curfew order as an application for committal to prison.
287.Subsection (4) provides the Secretary of State with regulation-making powers to enable the responsible officer to allow the non-resident parent to be absent from the place specified in the curfew order during the curfew period in certain cases or circumstances, and also the power to set out the requirements which may be imposed in relation to such an absence.
288.Section 39N concerns breaches of curfew orders.
289.Subsection (1) of section 39N allows the person responsible for monitoring compliance with the curfew order, or the Commission, to apply to the court should the non-resident parent not meet the requirements of the curfew order, or subsequent requirements imposed by virtue of section 39M(4).
290.Subsections (2)and (3) require the court to establish (in the presence of the non-resident parent) whether the curfew order has been breached without reasonable excuse, and if it is found to have been, the court can issue a warrant to commit the non-resident parent to prison or extend the period of the curfew order.
291.Subsection (4) sets out that a warrant for committal to prison shall order that the non-resident parent be imprisoned for the period specified in the warrant but released (unless in custody for a different reason) should they pay the full amount due in respect of which the curfew order was made.
292.Subsection (5) provides that a warrant may be directed to such person or persons as the court sees fit.
293.Subsection (6)provides that where a curfew order is extended because it has been breached, that order can not be extended for more than six months from the date the extension of the order is made.
294.Subsection (7) enables the court to release a non-resident parent from prison or reduce their sentence if they pay part of the amount specified in the curfew order, following an application from the Commission or the non-resident parent.
295.Where part of the amount specified in the order is paid and the court is considering an application under subsection (7), subsection (8) enables the Commission to make representations to the court about which of its powers under subsection (7) (to reduce the period specified in the warrant or to release the person imprisoned) should be exercised. It also enables the non-resident parent to respond to those representations.
296.Section 39O prevents a court from making a curfew order against a non-resident parent who is in custody for any reason.
297.Subsections (2)and (3) of section 39O suspend a curfew order if the non-resident parent is committed to prison, and commence it once the suspension is lifted because the non-resident parent is released from prison.
298.Section 39P provides the Secretary of State with regulation-making powers regarding the practical procedures relating to curfew orders in England and Wales.
299.Subsection (2) of section 39Psets out that the regulations may in particular include provisions relating to the following:
form and content of a curfew order;
allowing an application for a curfew order to be renewed if no order is made;
allowing an employer’s written statement as evidence that wages have been paid to a non-resident parent;
enabling a justice of the peace to issue a summons for a person to appear in court and, where they do not, to issue a warrant for their arrest, or to issue a warrant for arrest without issuing a summons first, to secure a person’s presence before a court;
the execution of a warrant for arrest;
enabling a curfew order to be amended or revoked on application to the magistrates’ court by the Commission or the non-resident parent;
in relation to any amendment, provision similar to that in section 39J – determining the amount of costs the court can recover from a non-resident parent, section 39L – ordering a search of a non-resident parent, 39M(2) and (3) – requirement for monitoring arrangements to be in place; and
how a magistrates’ court exercises its power following part payment under sections 39K(2) and (3) and section 39N(7).
300.Subsections (3) and (4) provide for the making of regulations enabling a magistrates’ court to amend a curfew order to specify a location in Scotland. In these circumstances any functions of the court in relation to the curfew order shall be exercisable by the sheriff.
301.Section 39Q provides the Secretary of State with regulation-making powers regarding the practical processes relating to curfew orders in Scotland.
302.Subsection (2) of section 39Q sets out that the regulations may in particular make provision relating to the following:
content of a curfew order;
allowing an employer’s written statement as evidence that wages have been paid to a non-resident parent;
enabling a curfew order to be amended or revoked on application to the sheriff by the Commission or the non-resident parent
in relation to any amendment, provision similar to that in section 39J – determining the amount of costs the court can recover from a non-resident parent, section 39L – ordering a search of a non-resident parent, 39M(2) and (3) – requirement for monitoring arrangements to be in place; and
how the sheriff exercises the powers conferred by sections 39K(2) and (3) andsection 39N(7).
303.Subsections (3) and (4) make provision for regulations enabling the sheriff to amend a curfew order to specify a location in England and Wales. In these circumstances any functions of the sheriff in relation to the curfew order shall be exercisable instead by the magistrates’ court.
304.Subsection (5) sets out that 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 for:
form of a curfew order;
allowing an application for a curfew order to be renewed if no order is made;
enabling the sheriff to issue a citation for a person to appear before the sheriff, and if that person does not appear, to issue a warrant for their arrest;
enabling the sheriff to issue a warrant for arrest without issuing a citation first, to secure a person’s presence before it; and
the execution of a warrant for arrest.
