CMS Collection Methods
Overactive enforcement. This is a relatively recent phenomenon. The Child Maintenance Service used to be a by word for issuing threats but not actually carrying them out. This company has however noticed a marked increase in the number of clients approaching this company with Liability order Applications, deduction from earning orders and account deduction orders. The CMS can enforce debt owed via:-
a) Deduction from Earnings Order.
This only works where the defaulting parent is employed and in some circumstances even then a Deduction from Earnings Order fails to collect the entire or any of the amount due. If this is happening to you call us on 03456 588683 because in most circumstances this will mean that your assessment is wrong and the CMS are charging you on income you do not have.
b) Bank / Building Society Account Orders. The Child Maintenance Service can make an Order without going to Court to freeze and deduct a lump sum from any bank account in credit or a Regular Monthly Deduction Order against any such bank or building society account. Until recently it was necessary for the account to be in the sole name of the defaulting parent but this has changed and joint accounts can now be utilised by the Child Maintenance Service for this method of enforcement. The presumption is that half of whatever is in that account belongs to the other joint holder, but the position is that a joint account is no longer impenetrable to the Service. If you find you have received one of these Orders it is important that you obtain advice on 03456 588683.
c) Liability Orders.
Not a method of enforcement in themselves they simply represent the Courts approval of the figure owed but open the gateway to other methods of enforcement as discussed below. It is very important that advice is sought when a Liability Order application is received. We frequently find that calculation of arrears on the Liability Order is incorrect and this can be much more difficult to address with the CMS once they have their Liability Order. When they are trying to obtain it from the Magistrates however the CMS has to listen for fear that the Magistrates would impose a decision the service does not like.
d) Bailiffs can be instructed once a Liability Order is obtained.
If this has happened to you should call us on 03456 588683 for advice concerning to the situation relating to the bailiffs and enforcement generally.
e) Third Party Debt Orders
Can be obtained, not only to freeze bank or building society accounts but to ensure that any individual who owes the non-resident parent money can be forced to pay the cash over to the CMS. If this is happening to you it is possible to have the Courts release some or all of the money back to you in certain circumstances. These applications are now very rare because of the CMS’s in-house power to make Orders directly against bank accounts without having to obtain the Liability Order first. Nonetheless, they can still be relevant if money is owed to you for instance say by an individual. If you find a Third Party Debt Order application being made to the Courts it is extremely important that you obtain advice on 03456 588683.
f) Charging Orders.
Where the defaulting parent has a house a Charging Order can be obtained. A Charging Order is a kind of sleeping mortgage. It does not incur interest but it does secure the money for the CMS provided there is the equity to pay it. It is important to realise that Charging Orders can be enforced by the sale of the property they charge and the CMS has an enforcement process to do this. It is very important therefore that if a Charging Order application is received that you obtain legal advice quickly in order to ensure that your rights are protected. It can be extremely difficult to deal with a case where a Charging Order already exists and an application is being made for an Order for Sale. It is much easier to deal with earlier because of the extra time available to deal with cases where we are consulted at the point where Charging Orders are applied for rather that than waiting until the Child Maintenance Service applies for a sale.
g) Criminal penalties.
Although it is not a criminal offence to fail to pay child support if a Liability Order is made and all methods of enforcement above have either drawn a blank or simply would not work (i.e. the defaulting parent does not own a property) then the CMS can take proceedings in the Magistrates Court for the defaulting parent to be imprisoned, his driving licence or passport to be suspended. A Committal Order or a Banning Order.
Such action is always to be the action of the last resort. The idea of an application for a Committal or Banning Order is not to throw the defaulting parent into prison or to ban him from driving, rather it is to hold a significant threat over his head to force him to pay the money. It is nonetheless the case that defaulting parents do go to prison and are being banned for failing to pay Liability Orders.
It should be understood that contrary to rumours flowing around that serving a few days inside will get rid of the Liability Order, this is wrong, pursuant to the rules regarding double jeopardy it is not possible to go to prison on the same Liability Order twice but once out of prison the defaulting parent can still be pursued in respect of the debt and the CMS can again try a Deduction from Earnings Order, Bailiffs, Third Party Debt Orders and indeed Charging Orders.