Child support the future is here

District Judge Roger Bird surveys the latest child support developments Readers with an interest in family law will be aware that the Child Support, Pensions...District Judge Roger Bird surveys the latest child support developments Readers with an interest in family law will be aware that the Child Support, Pensions and Social Security Act 2000 has received Royal assent but will not be completely in force until some time in 2002 (probably April).

However, the bad news is that various provisions of the 2000 Act are, quite unexpectedly, being brought into force bit by bit, and at least a passing acquaintance with the Act can be postponed no longer.The most significant changes effective on 31 January 2001 were brought about by the Child Support, Pensions and Social Security Act 2000 (Commencement No 5) Order 2000.

Section 13 of the 2000 Act inserts a new section 14A into the 1991 Act, making it a criminal offence to fail to provide information for child support purposes or to provide false information.

Section 15 adds to section 26(2) of the 1991 Act which provided for cases in which parentage might be presumed.

The further cases are where an alleged parent refuses to take a scientific test to determine parentage, and where such a test has been taken and shows that there is no reasonable doubt that he is the parent.No hiding placeSection 44 of the 1991 Act is amended to extend the jurisdiction of the Child Support Agency (CSA) to cover non-resident parents who are not habitually resident in the UK but are in certain classes of occupation such as the diplomatic service or overseas civil service, HM forces, or are employed by employers of a description prescribed by regulations (see SI 2001/161).

This closes an obvious loophole in the 1991 Act.Licence to disqualifyNew sections 39A, 40A and 40B are inserted into the 1991 Act, to take effect as from 2 April 2001.

Under the previous law, a procedure is established for the making of liability orders where payments due under an assessment (to be called a maintenance calculation) have not been made.

Liability orders can only be made by magistrates courts, and when the debtor continues to fail to pay, can be enforced by distress.

Where distress fails, an application can be made to magistrates for committal to prison.

This is a drastic remedy, and anecdotal evidence suggests that no committal orders have been made.

The new provisions provide an alternative remedy, in that where the magistrates are satisfied as to culpable neglect, they may now either commit to prison or disqualify the offender from driving for up to two years; such a sentence may be suspended.

The court must enquire into whether he needs a driving licence to earn his living, though the logic of this process may not be obvious.

At first one would think that this provision was designed to ensure that a person who needed his licence did not lose it.

However, in the course of the parliamentary debates it was made clear that the government was relying heavily on the experience of Texas in the US where it was not the taking away of the licences that got the money flowing to children; it was the threat of taking away the driving licences (Baroness Hollis on 17 April 2000).

Paradoxically, therefore, people who need their driving licence may be at more risk of this penalty than those who do not.

Only one of the two punishments may be imposed.Child maintenance in disguise?The various other parts of the Act which have been introduced deal with such matters as revision of decisions and some formalities as to appeals, which need not detain us for the moment.

Perhaps of more interest now is the decision of the Court of Appeal in Dorney-Kingdom v Dorney-Kingdom [2000] 3 FCR 20 where the practice of making orders for children under the guise of spousal orders subject to pro-tanto reduction if and when a CSA assessment is made was considered.

It was held that this is a legitimate device since it is only a holding order and does not purport to oust the jurisdiction of the CSA, but that it is crucial that the order for spousal maintenance should be a genuine one.

There must be a substantial ingredient of spousal maintenance, so the order cannot just be a child maintenance order under another name.Looking ahead, when the 2000 Act comes fully into force, a consent order for a child will no longer oust the jurisdiction of the CSA indefinitely, but will only have this effect for one year.

This will be an incentive to ensure that orders or agreements are based squarely on the new CSA formula.District Judge Roger Bird sits at Bristol Combined Court Centre