Child Maintenance Act (Northern Ireland) 2008

Legislation Crest

N.I.

Child Maintenance Act (Northern Ireland) 2008

2008 CHAPTER 10

An Act to amend the law relating to child support; and for connected purposes.

[2nd July 2008]

BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:

PART 1 N.I.ADDITIONAL FUNCTIONS OF THE DEPARTMENT

Promotion of child maintenanceN.I.

Provision of information and guidanceN.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Agency arrangements and provision of servicesN.I.

Contracting outN.I.

Supplementary provisionsN.I.

PART 2 N.I.CHILD SUPPORT ETC.

Removal of compulsion for benefit claimantsN.I.

Repeal of Articles 9 and 43N.I.

Maintenance calculationsN.I.

Changes to the calculation of maintenanceN.I.

Power to regulate supersessionN.I.

Determination of applications for a variationN.I.

Transfer of cases to new rulesN.I.

Collection and enforcementN.I.

Use of deduction from earnings orders as basic method of paymentN.I.

Prospective

Deduction from earnings orders: the liable person's earningsN.I.

Orders for regular deductions from accountsN.I.

Lump sum deduction ordersN.I.

Orders preventing avoidanceN.I.

Prospective

Administrative liability ordersN.I.

Prospective

Disqualification for holding or obtaining travel authorisationN.I.

Prospective

Curfew ordersN.I.

Prospective

Commitment to prisonN.I.

Prospective

Disqualification for drivingN.I.

Debt management powersN.I.

Power to treat liability as satisfiedN.I.

Power to accept part payment of arrears in full and final satisfactionN.I.

Power to write off arrearsN.I.

Prospective

Transfer of arrearsN.I.

MiscellaneousN.I.

Meaning of “child”N.I.

Offence of failing to notify change of addressN.I.

Additional special caseN.I.

Recovery of arrears from deceased's estateN.I.

Prospective

Disclosure of information relating to family proceedingsN.I.

Disclosure of information to credit reference agenciesN.I.

Pilot schemesN.I.

Extinction of liability in respect of interest and feesN.I.

Use of informationN.I.

Liable relative provisions: exclusion of parental duty to maintainN.I.

PART 3 N.I.GENERAL

Regulations: generalN.I.

36—(1) Power to make regulations under this Act includes power to make incidental, supplementary, consequential or transitional provision or savings.

(2) Power to make regulations under this Act may be exercised so as to provide for a person to exercise a discretion in dealing with any matter.

(3) Subject to the following provisions of this section, any regulations made under this Act shall be subject to negative resolution.

(4) Regulations under section 3(1) or (4) or the first regulations under paragraphs 2(1), 3(1), 5(1) or (2), 6(1) or (3) or 7 of Schedule 2—

(a)must be laid before the Assembly after being made; and

(b)take effect on such date as may be specified in the regulations, but (without prejudice to the validity of anything done thereunder or to the making of new regulations) cease to have effect upon the expiration of a period of 6 months from that date unless at some time before the expiration of that period the regulations are approved by a resolution of the Assembly.

(5) This subsection applies to any regulations under this Act which—

(a)but for subsection (6), would be subject to negative resolution, and

(b)are contained in a statutory rule which includes any regulations subject to the confirmatory procedure.

(6) Any regulations to which subsection (5) applies shall not be subject to negative resolution, but shall be subject to the confirmatory procedure.

(7) In this section “the confirmatory procedure” means the procedure described in subsection (4).

General interpretationN.I.

37—(1) In this Act—

the Child Support Order” means the Child Support (Northern Ireland) Order 1991 (NI 23);

the Department” means the Department for Social Development;

statutory provision” has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33).

(2) Where—

(a)this Act amends or repeals a statutory provision contained in the Child Support Order which has been amended by the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4), and

(b)the amendment by the 2000 Act has been brought into operation for limited purposes only,

the reference to the statutory provision shall, unless the contrary intention appears, be read as a reference to the statutory provision as it has effect apart from the 2000 Act, as well as to the statutory provision as amended by that Act.

Commencement Information

I7S. 37 wholly in operation at 9.7.2008; s. 37(1) in operation at Royal Assent, see s. 41(1); s. 37(2) in operation at 9.7.2008 by S.R. 2008/291, art. 2(5)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TransitionN.I.

40—(1) The Department may, in relation to Article 9 or 43 of the Child Support Order, by regulations make provision for the Article to have effect with such modifications as the Department considers expedient in anticipation of the coming into operation of section 7.

(2) Articles 22(5A), 32A, 32E, 32F, 32J, 32L, 32M, 38C to 38E, 40A, 45A, 45B and 45D of the Child Support Order shall have effect as if “child support maintenance” included periodical payments required to be paid in accordance with a maintenance assessment under the Order.

(3) Articles 22(7A), 32A, 32C, 32E, 32F, 32J, 32L, 32M, 36B, 36G, 37, 37A and 45B of the Child Support Order shall have effect as if “maintenance calculation” included a maintenance assessment under the Order.

(4) Articles 35, 36B, 36G, 36J, 37, 37A and 45D of the Child Support Order shall have effect as if orders made under Article 33 of that Order had been made under Article 32M of that Order.

(5) An order may be made under Article 32M of the Child Support Order in respect of an amount even though the time within which an application could have been instituted under Article 33 of that Order for an order in respect of that amount has expired

(6) The Department may by regulations make in connection with the coming into operation of any provision of this Act such transitional provision or savings as the Department considers necessary or expedient.

Commencement Information

I10S. 40 wholly in operation at 9.7.2008; s. 40(6) in operation at Royal Assent, see s. 41(1); s. 40(1)-(5) in operation at 9.7.2008 by S.R. 2008/291, art. 2(5)

CommencementN.I.

41—(1) This Act (except sections 36, 37(1), 40(6), this section and section 42) shall come into operation on such day or days as the Department may by order appoint.

(2) An order under subsection (1) may include such transitional provision or savings as the Department considers necessary or expedient in connection with bringing any provision of this Act into operation.

(3) An order under subsection (1) appointing the day on which section 30 is to come into operation may be made only with the consent of the Lord Chancellor.

Subordinate Legislation Made

P1S. 41(1) power partly exercised: 9.7.2008 and 14.7.2008 appointed for specified provisions by S.R. 2008/291, art. 2;

5.8.2008 appointed for specified provisions by S.R. 2008/331, art. 2;

29.9.2008 and 27.10.2008 appointed for specified provisions by S.R. 2008/399, art. 2 (with transitional and savings provisions in art. 3);

27.10.2008 and 1.11.2008 appointed for specified provisions by S.R. 2008/419, arts. 2, 3;

5.12.2008 appointed for specified provisions by S.R. 2008/489, art. 2;

1.6.2009 and 3.8.2009 appointed for specified provisions by S.R. 2009/216, art. 2;

26.11.2009 and 25.1.2010 appointed for specified provisions by S.R. 2009/380, art. 2;

20.12.2010 appointed for specified provision by S.R. 2010/416, art. 2

Short titleN.I.

42  This Act may be cited as the Child Maintenance Act (Northern Ireland) 2008.

SCHEDULES

Section 8.

SCHEDULE 1N.I.CHANGES TO THE CALCULATION OF MAINTENANCE

IntroductoryN.I.

1  Part 1 of Schedule 1 to the Child Support Order (calculation of weekly amount of child support maintenance) is amended as follows.N.I.

Calculation by reference to gross weekly incomeN.I.

2  In Part 1 (under which the weekly amount of child support maintenance payable is calculated by reference to the non-resident parent's net weekly income), for “net”, in each place where it occurs, substitute “ gross ”.N.I.

Change to basic rateN.I.

3  For paragraph 2 (basic rate) substitute—N.I.

2(1) Subject to sub-paragraph (2), the basic rate is the following percentage of the non-resident parent's gross weekly income—

  • 12% where the non-resident parent has one qualifying child;

  • 16% where the non-resident parent has 2 qualifying children;

  • 19% where the non-resident parent has 3 or more qualifying children.

(2) If the gross weekly income of the non-resident parent exceeds £800, the basic rate is the aggregate of the amount found by applying sub-paragraph (1) in relation to the first £800 of that income and the following percentage of the remainder—

  • 9% where the non-resident parent has one qualifying child;

  • 12% where the non-resident parent has 2 qualifying children;

  • 15% where the non-resident parent has 3 or more qualifying children.

(3) If the non-resident parent also has one or more relevant other children, gross weekly income shall be treated for the purposes of sub-paragraphs (1) and (2) as reduced by the following percentage—

  • 12% where the non-resident parent has one relevant other child;

  • 16% where the non-resident parent has 2 relevant other children;

  • 19% where the non-resident parent has 3 or more relevant other children..

Increase in flat rate and minimum amounts of liabilityN.I.

4  In the following provisions, for “£5” substitute “ £7 ”N.I.

(a)paragraph 3(3) (minimum amount of liability in the case of reduced rate);

(b)paragraph 4(1) (amount of flat rate of liability);

(c)paragraph 7(7) (minimum amount of liability in the case of basic and reduced rates where reduction because of shared care applies)

Applicable rate where non-resident parent party to other maintenance arrangementN.I.

5—(1) In paragraph 1(1) (under which the weekly rate of child support maintenance is the basic rate unless a reduced rate, a flat rate or a nil rate applies), at the beginning insert “ Subject to paragraph 5A, ”.N.I.

(2) After paragraph 5 insert—

Non-resident parent party to other maintenance arrangementN.I.

5A(1) This paragraph applies where—

(a)the non-resident parent is a party to a qualifying maintenance arrangement with respect to a child of the non-resident parent who is not a qualifying child, and

(b)the weekly rate of child support maintenance apart from this paragraph would be the basic rate or a reduced rate or calculated following agreement to a variation where the rate would otherwise be a flat rate or the nil rate.

(2) The weekly rate of child support maintenance is the greater of £7 and the amount found as follows.

(3) First, calculate the amount which would be payable if the non-resident parent's qualifying children also included every child with respect to whom the non-resident parent is a party to a qualifying maintenance arrangement.

(4) Second, divide the amount so calculated by the number of children taken into account for the purposes of the calculation.

(5) Third, multiply the amount so found by the number of children who, for purposes other than the calculation under sub-paragraph (3), are qualifying children of the non-resident parent.

(6) For the purposes of this paragraph, the non-resident parent is a party to a qualifying maintenance arrangement with respect to a child if the non-resident parent is—

(a)liable to pay maintenance for the child under a maintenance order, or

(b)a party to an agreement of a prescribed description which provides for the non-resident parent to make payments for the benefit of the child,

and the child is habitually resident in the United Kingdom..

Shared careN.I.

6  In paragraph 7(2) (circumstances in which decrease for shared care applies in cases where child support maintenance is payable at the basic rate or a reduced rate), for “If the care of a qualifying child is shared” substitute “ If the care of a qualifying child is, or is to be, shared ”.N.I.

7  In paragraph 8(2) (circumstances in which decrease for shared care applies in cases where child support maintenance payable at a flat rate), for “If the care of a qualifying child is shared” substitute “ If the care of a qualifying child is, or is to be, shared ”N.I.

8—(1) In paragraph 9 (regulations about shared care), the existing provision becomes sub-paragraph (1).N.I.

(2) In that sub-paragraph, before paragraph (a) insert—

(za)for how it is to be determined whether the care of a qualifying child is to be shared as mentioned in paragraph 7(2);.

(3) In that sub-paragraph, after paragraph (b) insert—

(ba)for how it is to be determined how many nights count for those purposes;.

(4) After that sub-paragraph add—

(2) Regulations under sub-paragraph (1)(ba) may include provision enabling the Department to proceed for a prescribed period on the basis of a prescribed assumption..

Weekly incomeN.I.

9  In paragraph 10 (which confers power to make regulations about the manner in which weekly income is to be determined), for sub-paragraph (2) substitute—N.I.

(2) The regulations may, in particular—

(a)provide for determination in prescribed circumstances by reference to income of a prescribed description in a prescribed past period;

(b)provide for the Department to estimate any income or make an assumption as to any fact where, in its view, the information at its disposal is unreliable or insufficient, or relates to an atypical period in the life of the non-resident parent..

10  In paragraph 10(3) (under which weekly income over £2,000 is to be ignored for the purposes of Schedule 1), for “£2,000” substitute “ £3,000 ”.N.I.

Section 11.

SCHEDULE 2N.I.MAINTENANCE CALCULATIONS: TRANSFER OF CASES TO NEW RULES

Power to require a decision about whether to stay in the statutory schemeN.I.

1—(1) The Department may require the interested parties in relation to an existing case to choose whether or not to stay in the statutory scheme, so far as future accrual of liability is concerned.N.I.

(2) The reference in sub-paragraph (1) to an existing case is to any of the following—

(a)a maintenance assessment,

(b)an application for a maintenance assessment,

(c)a maintenance calculation made under existing rules, an

(d)an application for a maintenance calculation which will fall to be made under existing rules.

(3) For the purposes of this paragraph, a maintenance calculation is made (or will fall to be made) under existing rules if the amount of the periodical payments required to be paid in accordance with it is (or will be) determined otherwise than in accordance with Part 1 of Schedule 1 to the Child Support Order as amended by this Act.

2—(1) The Department may by regulations make provision about the exercise of the power under paragraph 1(1).N.I.

(2) Regulations under sub-paragraph (1) may, in particular—

(a)make provision about timing in relation to exercise of the power;

(b)make provision for exercise of the power in stages;

(c)specify principles for determining the order in which particular cases are to be dealt with under the power;

(d)make provision about procedure in relation to exercise of the power.

3—(1) The Department shall by regulations make such provision as it thinks fit about exercise of the right to make a choice required under paragraph 1(1).N.I.

(2) Regulations under sub-paragraph (1) shall, in particular—

(a)make provision about the time within which the choice must be made;

(b)make provision for a choice to stay in the statutory scheme to be made by means of an application to the Department for a maintenance calculation;

(c)make provision about the form and content of any application required by provision under paragraph (b).

4  If, in a particular case, any of the interested parties chooses not to stay in the statutory scheme, that person's choice shall be disregarded if any of the other interested parties chooses to stay in the statutory scheme.N.I.

Effect on accrual of liability of exercise of power under paragraph 1.N.I.

5—(1) Where the power under paragraph 1(1) is exercised in relation to a maintenance assessment or maintenance calculation, liability under the assessment or calculation shall cease to accrue with effect from such date as may be determined in accordance with regulations made by the Department.N.I.

(2) Where the power under paragraph 1(1) is exercised in relation to an application for a maintenance assessment or maintenance calculation, liability under any assessment or calculation made in response to the application shall accrue only in respect of the period ending with such date as may be determined in accordance with regulations made by the Department.

Additional powersN.I.

6—(1) The Department may by regulations make such provision as appears to it to be necessary or expedient for the purposes of, or in connection with, giving effect to a decision not to leave the statutory scheme.N.I.

(2) Regulations under sub-paragraph (1) may, in particular—

(a)make provision about procedure in relation to determination of an application made in pursuance of regulations under paragraph 3

(b)make provision about the application of the Child Support Order in relation to a maintenance calculation made in response to such an application;

(c)prescribe circumstances in which liability under such a maintenance calculation is to be subject to a prescribed adjustment.

(3) The Department may by regulations make provision enabling the Department to treat an application of the kind mentioned in paragraph 1(2)(b) or (d) as withdrawn if none of the interested parties chooses to stay in the statutory scheme.

InterpretationN.I.

7  In this Schedule—N.I.

  • “interested parties” has such meaning as may be prescribed;

  • maintenance assessment” means an assessment of maintenance made under the Child Support Order;

  • maintenance calculation” means a calculation of maintenance made under that Order;

  • prescribed” means prescribed by regulations made by the Department;

  • statutory scheme” means the scheme for child support maintenance under that Order.

Section 34.

SCHEDULE 3N.I.USE OF INFORMATION

1—(1) This paragraph applies to information which is held for the purposes of functions relating to income tax, contributions, tax credits, child benefit or guardian's allowance—N.I.

(a)by the Commissioners for Her Majesty's Revenue and Customs, or

(b)by a person providing services to them, in connection with the provision of those services.

(2) Information to which this paragraph applies may be supplied—

(a)to the Department or the Department for Employment and Learning, or

(b)to a person providing services to either of those Departments,

for use for the purposes of functions relating to child support.

(3) In this paragraph, “contributions” means contributions under Part 1 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7).

2—(1) This paragraph applies to information which is held for the purposes of functions relating to child support—N.I.

(a)by the Department or the Department for Employment and Learning, or

(b)by a person providing services to either of those Departments, in connection with the provision of those services.

(2) Information to which this paragraph applies may be supplied

(a)to the Commissioners for Her Majesty's Revenue and Customs, or

(b)to a person providing services to them,

for use for the purposes of any of their functions.

Section 38.

SCHEDULE 4N.I.MINOR AND CONSEQUENTIAL AMENDMENTS

The Child Support (Northern Ireland) Order 1991 (NI 23)N.I.

1— . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.I.

The Social Security Administration (Northern Ireland) Act 1992 (c. 8)N.I.

2— . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.I.

Prospective

The Deregulation and Contracting Out (Northern Ireland) Order 1996 (NI 11)N.I.

3  In Article 17 of the Deregulation and Contracting Out (Northern Ireland) Order 1996 (social security: amendments following certain orders), at the end of paragraph (2) add “ the Child Maintenance and Other Payments Act 2008 ”.N.I.

Section 39.

SCHEDULE 5N.I.REPEALS

Short Title Extent of repeal
The Child Support (Northern Ireland) Order 1991 (NI 23).
The Social Security Administration (Northern Ireland) Act 1992 (c. 8).
The Child Support (Northern Ireland) Order 1995 (NI 13). In Schedule 3, paragraph 8.
The Welfare Reform and Pensions (Northern Ireland) Order 1999 (NI 11). Article 71.
The Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4).
The Employment Act 2002 (c. 22). In Schedule 6, paragraphs 12(a) and 14(a).
The Civil Partnership Act 2004 (c. 33). In Schedule 24, paragraph 7.
The Welfare Reform Act (Northern Ireland) 2007 (c. 2). In Schedule 3, paragraph 2(3) to (6).