Maintenance Orders Act 1958

18 Powers of magistrates to review committals, etc. E+W

(1)Where, for the purpose of enforcing a maintenance order, a magistrates’ court has exercised its power under [F1subsection (2) of section 77 of the Magistrates’ Courts Act 1980], or this section to postpone the issue of a warrant of commitment and under the terms of the postponement the warrant falls to be issued, then—

(a)the warrant shall not be issued except in pursuance of subsection (2) or paragraph (a) of subsection (3) of this section; and

(b)the [F2justices’ chief executive for] the court shall give notice to the defendant stating that if the defendant considers there are grounds for not issuing the warrant he may make an application to the court in the prescribed manner requesting that the warrant shall not be issued and stating those grounds.

(2)If no such application is received by the [F2justices’ chief executive for] the court within the prescribed period, any justice of the peace acting for the same petty sessions area as the court may issue the warrant of commitment at any time after the expiration of that period; and if such an application is so received any such justice may, after considering the statements contained in the application—

(a)if he is of opinion that the application should be further considered, refer it to the court;

(b)if he is not of that opinion, issue the warrant forthwith;

and when an application is referred to the court under this subsection, the F3[justices’ chief executive for] the court shall give to the defendant and the person in whose favour the maintenance order in question was made notice of the time and place appointed for the consideration of the application by the court.

(3)On considering an application referred to it under the last foregoing subsection the court shall, unless in pursuance of subsection (6) of this section it remits the whole of the sum in respect of which the warrant could otherwise be issued, either—

(a)issue the warrant; or

(b)further postpone the issue thereof until such time and on such conditions, if any, as the court thinks just; or

(c)if in consequence of any change in the circumstances of the defendant the court considers it appropriate so to do, order that the warrant shall not be issued in any event.

(4)A defendant who is for the time being imprisoned or otherwise detained under a warrant of commitment issued by a magistrates’ court for the purpose of enforcing a maintenance order, and who is not detained otherwise than for the enforcement of such an order, may make an application to the court in the prescribed manner requesting that the warrant shall be cancelled and stating the grounds of the application; and thereupon any justice of the peace acting for the same petty sessions area as the court may, after considering the statements contained in the application—

(a)if he is of opinion that the application should be further considered, refer it to the court;

(b)if he is not of that opinion, refuse the application;

and when an application is referred to the court under this subsection, the [F2justices’ chief executive for] the court shall give to the person in charge of the prison or other place in which the defendant is detained and the person in whose favour the maintenance order in question was made notice of the time and place appointed for the consideration of the application by the court.

(5)On considering an application referred to it under the last foregoing subsection, the court shall, unless in pursuance of the next following subsection it remits the whole of the sum in respect of which the warrant was issued or such part thereof as remains to be paid, either—

(a)refuse the application; or

(b)if the court is satisfied that the defendant is unable to pay, or to make any payment or further payment towards, the sum aforesaid and if it is of opinion that in all the circumstances of the case the defendant ought not to continue to be detained under the warrant, order that the warrant shall cease to have effect when the person in charge of the prison or other place aforesaid is informed of the making of the order;

and where the court makes an order under paragraph (b) of this subsection, it may if it thinks fit also—

(i)fix a term of imprisonment in respect of the sum aforesaid or such part thereof as remains to be paid, being a term not exceeding so much of the term of the previous warrant as, after taking into account any reduction thereof by virtue of the next following subsection, remained to be served at the date of the order; and

(ii)postpone the issue of a warrant for the commitment of the defendant for that term until such time and on such conditions, if any, as the court thinks just.

(6)On considering an application under this section in respect of a warrant or a postponed warrant, the court may, if the maintenance order in question is an affiliation order or an order enforceable as an affiliation order, remit the whole or any part of the sum due under the order; and where the court remits the sum or part of the sum in respect of which the warrant was issued or the postponed warrant could have been issued, [F4section 79 of the Magistrates’ Courts Act 1980] (which provides that on payment of the sum for which imprisonment has been ordered by a magistrates’ court the order shall cease to have effect and that on payment of part of that sum the period of detention shall be reduced proportionately) shall apply as if payment of that sum or part had been made as therein mentioned.

(7)Where notice of the time and place appointed for the consideration of an application is required by this section to be given to the defendant or the person in whose favour the maintenance order in question was made and the defendant or, as the case may be, that person does not appear at that time and place, the court may proceed with the consideration of the application in his absence.

(8)A notice required by this section to be given by the [F2justices’ chief executive for] a magistrates’ court to any person shall be deemed to be given to that person if it is sent by registered post addressed to him at his last known address, notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person.