Enforcing Unpaid Maintenance
Even once an assessment is made and the arrears figure is calculated the Child Maintenance Service enforcement methods can be very slow and extremely long winded. The CMS has an absolute obligation to enforce debt owed and we can ensure the CMS takes every possible step to enforce via one of the following methods:-
a) Deduction from Earnings Order
This only works when the non-resident parent is employed and in some circumstances even then the Deduction from Earnings Order fails to collect the entirety or any of the amount due.
b) Account Deduction and Regular Account Deduction Orders
The Child Maintenance Service can submit an enquiry to all UK Banks and deposit taking institutions to disclose accounts in the name of the non-resident parent. They can then issue an Account Deduction Order to collect arrears against that or a Regular Account Deduction Order which then deducts a regular monthly amount against the bank account concerned.
There are further enforcement methods available to the Child Maintenance Service via the Courts. Firstly the CMS must obtain a Liability Order which is an application to the Court where the CMS explains the debt owed and the Court makes a Liability Order giving the CMS the opportunity to utilise the court enforcement processes which are:-
Bailiffs are Officers authorised by the Court to collect money by means of seizing property belonging to the non-resident parent and selling it at auction. In almost all cases where Bailiffs do successfully collect it is the threat of seizing the father’s possessions (i.e. sofa, TV, car) that lead to payment rather than the Bailiffs actually taking the possessions and auctioning them off. It should be noted however that Bailiffs can reach instalment agreements instead of collecting the debt in one go.
2. Third-party Debt Order
Generally speaking this is pretty defunct now that the Child Maintenance Service can make Account Deduction Orders but nonetheless they can via the court system make a Third-party Debt Order. This is perhaps more useful in relation to an acknowledged debt owed to the non-resident parent by an individual rather than a debt. In reality this will be very, very rare.
3. Charging Orders
Where the non-resident 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 parent with care provided there is equity to pay it. In some cases Charging Orders can be enforced by the sale of the land they charge.
4. 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 non-resident parent does not own a property and is not employed) then the CMS can take proceedings in the Magistrates Court for the non-resident parent to be imprisoned, banned from driving or disqualified from holding a UK passport. The true idea in respect of these three applications is not to imprison your ex, it is not to ban him from driving and it is not to disqualify him from holding a passport, the whole idea of this is that an order be made threatening to do so unless he starts making regular payments. In other words the Magistrates will make a “Suspended” Order conditional upon him making regular monthly amounts towards the arrears. These have been very successful in the past but there has over recent years been a hiatus in these kind of applications due to human rights issues which the Child Maintenance Service have now dealt with and these applications are being made afresh. This will inevitably result in some fathers going to prison, being banned or having their passport taken away because although the Courts will not make an order to do that immediately, they will make a Suspended Order on the basis that payments are made on a regular basis and if they are not the matter then returns to Court when the Magistrates have to consider whether to carry out the punishment that they have ordered. An application for criminal penalties to the Magistrates Court will always be an action of last resort but the delays in obtaining an assessment then a Liability Order, the Bailiffs, investigating whether an Account Deduction Order or Third-party Debt Order or Charging Order is appropriate can often mean years of waiting and we can keep the pressure on the CMS to ensure the processes are followed as quickly as possible and that this final method of enforcement is dealt with efficiently. As we have already stated very few non-resident parents actually go to prison or are banned from driving for a failure to pay their child maintenance, this is because almost all non-resident parents once faced with the prospect of imprisonment or a lengthy driving ban reach an arrangement with the Courts to pay maintenance. Although the passport element sounds a bit of a lame duck, when dealing with parents of considerable wealth who have hidden it and go on regular holidays it is expected that this element of the process will be particularly compelling. It is nonetheless the case that many parents with care feel that child support maintenance is in effect uncollectible simply because of the very lengthy CMS delays going through the assessment and enforcement process. Speedy and efficient enforcement can ensure the non-resident parent looks on his obligations much more seriously much more quickly. The idea of enforcement is to turn on the maintenance tap and if you are finding your tap has dried up then please call us on 03456 588683.