The petition of Craig Bulman,
Declares that the petitioner is concerned with section 33 of the Child Support Act 1991 and its compatibility with Article 6 of the Human Rights Act 1998; notes that the Child Maintenance Service (CMS) is securing liability orders for debts that are not owed and are in dispute; further notes that no evidence is provided by the CMS to substantiate the debt is owed by the Paying Parent, further declares that Section 6 of the Human Rights Act 1998 states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
The petitioners therefore request that the House of Commons urge the Government to address these concerns surrounding section 33 of the Child Support Act 1991 and its compatibility with Article 6 of the Human Rights Act 1998.
And the petitioners remain, etc.—[Official Report, 1 March 2023; Vol. 728, c. 5P.]
[P002808]
Observations from the Parliamentary Under-Secretary of State for Work and Pensions (Mims Davies):
The Child Maintenance Service always encourages paying parents to pay their maintenance on time in order to avoid accrual of arrears. Where the paying parent fails to pay on time or in full, and arrears have started to accrue, the CMS will attempt to regain compliance. Paying parents are given warnings of the consequences of non-compliance and caseworkers will seek to establish reasons for missed payments, help parents get back on track with their payments and put a repayment plan in place. If an arrears notice has already been issued within the last 12 months, the CMS is not required to issue another before taking enforcement action.
If negotiations are unsuccessful and no payment is agreed, then enforcement action can be sought to restart the flow of money to ensure children get the financial support they deserve. The CMS must consider the welfare of any children involved in any decision regarding enforcement action. Safeguards are in place throughout the process to ensure enforcement action is reasonable and proportionate, and that paying parents are given adequate opportunities to raise any issues or objections. We are satisfied that section 33 of the 1991 Act, and the statutory child maintenance scheme and its operations as a whole, are compatible with article 6, and all other relevant articles of the ECHR, and with the Human Rights Act 1998.
Prior to enforcement action being taken, a liability order must be obtained. A liability order allows the CMS to have the debt the paying parents owes legally recognised by the court.
The CMS must make an application to the magistrates court—or sheriff court in Scotland—for an LO against the PP. In the application, the CMS must provide evidence that the debt has accrued and payments have been missed. The court will consider whether the debt in question has become payable and whether it has not been paid. However, the court has no jurisdiction to question the calculation on which the debt is based. If an appeal against the liability or calculation is pending, the court may decide to adjourn. The PP has the right to appear at the hearing but is not obliged to as the LO can be made in their absence. An LO can be appealed in a magistrates court under the Magistrates’ Courts Act 1980.
The CMS generally would not proceed with the LO application if there is an ongoing appeal or any outstanding calculation issue where the outcome may impact arrears for the period of debt covered by the LO application. The CMS can however proceed with an application for any safe period of debt such as any period prior to the effective date of the disputed maintenance calculation, or if they are confident that the arrears balance is correct and will not be altered.
The Department recognises the importance of supporting individuals in order to protect their rights. There are steps the Secretary of State takes to ensure this happens.
The CMS will issue arrears warnings at least every 12 months, informing PPs of the consequences of non-compliance. Once a decision is made to proceed with an LO, a further specific warning letter is issued to inform the PP that the CMS will apply for an LO within seven days if the paying parent is in the UK, or 28 days if they are abroad. No further action is taken until the warning period has elapsed.
If the PP pays the full amount due within the notice period, the CMS will not proceed with the LO application. If part of the amount is paid, a decision will be made on whether the application will continue for the outstanding balance. The PP can still contact CMS to arrange an acceptable arrears arrangement.
If the PP disagrees with the amount of arrears due, they can appeal through the mandatory reconsideration process and beyond that, to the independent Tribunal Service. This must be done within the notice period otherwise the application will be made. The PP can only dispute the amount of arrears due, not the LO itself prior to the liability order being granted.
Before proceeding with an LO application, the CMS will attempt to contact the receiving parent to check whether they agree to enforcement action being taken, however the ultimate decision on whether to the proceed with the LO sits with the CMS. If the circumstances of the case are not appropriate for LO action at that time, the CMS can consider pausing the case for a suitable period of time before reinstating action to commence recovery of the arrears.
Lastly, a PP can ask to negotiate their arrears payments at any time. This is made clear in the letters they are sent.