The International Recovery of Maintenance (Hague Convention 2007 etc.) Regulations 2012

Regulation 6

SCHEDULE 2E+W+SENFORCEMENT OF INTERNATIONAL MAINTENANCE ORDERS – DRIVING DISQUALIFICATION ORDERS

ApplicationE+W+S

1.  The provisions of this Schedule apply in relation to the enforcement of a maintenance decision relating to a child where that maintenance decision is registered for enforcement, or enforceable, by virtue of—

(a)the Council Regulation;

(b)the Lugano Convention;

(c)the Maintenance Regulation; or

(d)the Convention.

2.—(1) In this Schedule—E+W+S

“the 1980 Act” means the Magistrates' Courts Act 1980;

“the Council Regulation” means Council Regulation (EC) No 44/2001 M1 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;

“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters signed on behalf of the European Community on 30th October 2007 M2;

“arrears” means a sum or sums payable to the creditor from the debtor which have fallen due under the terms of a maintenance decision and which the debtor has not paid;

“the court” means—

“the creditor” means a person to whom a sum or sums of maintenance are owed by the debtor under the terms of a maintenance decision in relation to which an application under this Schedule is made, and includes—

“the debtor” means the person who is liable to pay a sum or sums to the creditor under the terms of the maintenance decision in relation to which a complaint referred to in paragraph 3(2) or an application referred to in paragraph 4(1) of this Schedule is made;

“driving disqualification order” means an order under paragraph 5(1)(a) of this Schedule;

“maintenance decision” means a maintenance obligation to which an international agreement mentioned in paragraph 1 applies and which is—

(2) In this Schedule—

(a)“child” means a person who—

(i)either—

(aa)has not attained the age of 16, or

(bb)has not attained the age of 20, and is receiving full time education or vocational training; and

(ii)is not or has not been party to a marriage, to a civil partnership or to an overseas relationship treated as a civil partnership under section 215 of the Civil Partnership Act 2004, and for the purposes of sub-paragraph (ii) “marriage” and “civil partnership” include a void marriage and a void civil partnership respectively;

(b)(i)“driving licence” means a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988 M4;

(ii)references to “driving licence” in paragraphs 7, 10(1) and 11 include a reference to its counterpart within the meaning of section 108(1) of the Road Traffic Act 1988 M5, pending repeal of that definition by the Road Safety Act 2006 M6;

(c)references to sections 76 and 93 of the 1980 Act are to those provisions as modified by section 5(5B) and (5C) of the Civil Jurisdiction and Judgments Act 1982 M7.

3.—(1) This paragraph applies to England and Wales only.E+W+S

(2) Where a creditor makes a complaint under section 93 of the 1980 Act for enforcement under section 76 of that Act of a maintenance decision, the court may make a driving disqualification order.

(3) The court shall not make a driving disqualification order—

(a)in the absence of the debtor;

(b)if it considers that, in a case in which it has power to do so, it is appropriate to—

(i)make an attachment of earnings order;

(ii)make an order under section 76(5) of the 1980 Act; or

(iii)issue a warrant of control for the purpose of recovering the arrears under section 76(1) M8 of that Act;

(c)unless either—

(i)the creditor has sought to obtain a charging order or a third party debt order in respect of the arrears and the arrears or any portion of them remain unpaid; or

(ii)the debtor has no assets in England and Wales which are susceptible to such methods of enforcement.

(4) Pending the entry into force of section 62 of, and Schedule 12 to, the Tribunals, Courts and Enforcement Act 2007 M9, the reference in sub-paragraph (b)(iii) to obtaining a warrant of control is to be read as a reference to obtaining a warrant of distress.

Application for a driving disqualification order – ScotlandE+W+S

4.—(1) In Scotland, the creditor may, by summary application, apply to the court for a driving disqualification order where the conditions mentioned in sub-paragraphs (2), (3) and (4) are met.

(2) The first condition is that arrears have arisen under the maintenance decision.

(3) The second condition is that—

(a)a diligence against earnings listed in section 46(1) of the Debtors (Scotland) Act 1987 has been executed or made under Part 3 of that Act to secure the payment of sums due under the maintenance decision and it has proved ineffective as a means of securing that payments are made in accordance with the maintenance decision; or

(b)such diligence against earnings is inappropriate because the debtor is unemployed or otherwise has no earnings which could be the subject of a diligence against earnings.

(4) The third condition is that the creditor has sought to recover the arrears by—

(a)an attachment;

(b)an arrestment; or

(c)an inhibition,

and the arrears or any portion of them remain unpaid or the debtor has no assets in Scotland which are susceptible to the methods of enforcement mentioned in this sub-paragraph.

Making of a driving disqualification orderE+W+S

5.—(1) If, but only if, the court is of the opinion that the failure to pay the arrears is due to wilful refusal or culpable neglect on the part of the debtor, it may—

(a)make an order (a driving disqualification order) disqualifying the debtor from holding or obtaining a driving licence for such period specified in the order, not exceeding two years, as it thinks fit; or

(b)make a driving disqualification order but suspend its operation until such time and on such conditions (if any) as it thinks just.

(2) The court shall not make a driving disqualification order unless it has enquired, in the presence of the debtor, as to—

(a)the debtor's means;

(b)whether the debtor needs a driving licence to earn his or her living; and

(c)whether the failure to pay the arrears is due to wilful refusal or culpable neglect on the part of the debtor.

6.  A driving disqualification order must state the amount of arrears in respect of which it is made and the period to which they relate and the amount may not exceed the arrears owing under the maintenance decision at the date on which the complaint referred to in paragraph 3 or the application under paragraph 4 was made.E+W+S

7.  A court which makes a driving disqualification order shall require the person to whom it relates to produce any driving licence held by that person.E+W+S

8.—(1) The court shall not, in relation to arrears—E+W+S

(a)make a driving disqualification order during the currency of a warrant committing the debtor to prison in respect of the same arrears;

(b)issue a warrant committing the debtor to prison where a driving disqualification order has been made in respect of the same arrears but the period of disqualification specified in the driving disqualification order has not expired.

(2) In sub-paragraph (1)—

(a)references to a warrant committing the debtor to prison include such a warrant which has been postponed;

(b)references to a driving disqualification order include such an order which has been suspended in accordance with paragraph 5(1)(b); and

(c)references to the currency of a warrant, or to the period of disqualification specified in a driving disqualification order, are to be read as including references to the period of postponement of a warrant or suspension of disqualification respectively.

Variation, revocation and expiry of driving disqualification orderE+W+S

9.—(1) On application by the creditor or the debtor, the court—

(a)may, if part of the amount in respect of which the order is made is paid to any person authorised to receive it, make an order substituting a shorter period of disqualification, or revoking the driving disqualification order; and

(b)must, if the whole of the amount is so paid, make an order revoking the driving disqualification order.

(2) An application under sub-paragraph (1) shall be made—

(a)in England and Wales, by complaint;

(b)in Scotland, by summary application.

10.  Upon the making of a further complaint under section 93 of the 1980 Act or application under paragraph 4 of this Schedule, the court may make a further driving disqualification order if the arrears in respect of which the driving disqualification order was made have not been paid in full when the period of disqualification specified in that order expires.E+W+S

Notification to the Secretary of StateE+W+S

11.  Where a court—

(a)makes a driving disqualification order; or

(b)makes an order varying or revoking a driving disqualification order,

it shall send notice of that fact and any driving licence produced to the court to the Secretary of State.

Production of driving licence in England and WalesE+W+S

12.  In England and Wales, a justice of the peace may issue a summons to the debtor to produce to a magistrates' court any driving licence held by the debtor, and issue a warrant for the debtor's arrest if the debtor does not comply.

Procedure on an application for a driving disqualification order in ScotlandE+W+S

13.  In Scotland, the power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court includes the power to make, in relation to driving disqualification orders made under this Schedule, provision—

(a)as to the form of any order issued under this Schedule;

(b)allowing an application under this Schedule to be renewed where no order is issued;

(c)that a statement in writing to the effect that wages of any amount have been paid to the debtor during any period, purported to be signed by or on behalf of the debtor's employer, is sufficient evidence of the facts stated;

(d)that, for the purposes of enabling an inquiry to be made as to the debtor's conduct and means, the sheriff may issue a citation to the debtor to appear before the sheriff and (if the debtor does not obey) may issue a warrant for the debtor's arrest;

(e)that, for the purposes of enabling such an inquiry, the sheriff may issue a warrant for the debtor's arrest without issuing a citation;

(f)as to the execution of a warrant of arrest.