Department for Communities Child Maintenance Consultation: Accelerating Enforcement (Administrative Liability Orders)

Administrative Liability Orders

Currently where a paying parent has missed payments of child maintenance, the Child Maintenance Service attempts to recover the arrears via a Deduction from Earnings Order or by deductions directly from their bank accounts. Where this has not proved effective, the Child Maintenance Service must apply for a liability order to the Magistrates’ Court and wait for the application to be granted before it is able to take certain enforcement measures to collect unpaid child maintenance. In Northern Ireland, the involvement of the Enforcement of Judgments Office (EJO) also lengthens the process. From the point of application to a liability order being granted can take up to 22 weeks.

Work on bringing forward a Child Support Enforcement Bill is ongoing. The Bill was introduced in the Northern Ireland Assembly on 17^th June 2024. The Bill will amend existing uncommenced powers in section 17 of the Child Maintenance Act (Northern Ireland) 2008, that inserts new sections 32M and 32N into the Child Support (Northern Ireland) Order 1991. Those sections 32M and 32N will provide the powers for administrative liability orders. This will allow the Child Maintenance Service to make an administrative liability order against a person who has failed to pay child maintenance and is in arrears and to proceed quickly against parents who have failed to meet their obligations to pay child maintenance. Changing to administrative liability orders will help speed up and improve the enforcement process by removing the requirement to apply to the Courts for a liability order.

Before an administrative liability order is considered the Child Maintenance Service will ensure that, where appropriate, the Child Maintenance Service has exhausted other options to recover the arrears, either directly from the earnings of a paying parent via a Deduction from Earnings Order or directly from a range of bank accounts including certain business accounts. This will ensure that an administrative liability order will only be made where a deduction directly from the earnings of a paying parent has been unsuccessful or is not appropriate, such as where the paying parent is self-employed, or they support themselves through more complex earnings structures.

Currently, before applying to the Magistrates’ Courts for a liability order, the Child Maintenance Service must give a paying parent at least 7 days’ notice of the intention to do so. If the parent lives overseas there is a minimum notice period of 28 days. This process has been in place for many years and has been successful in ensuring that paying parents are given warning of the proposed action before an application is made.

The Department proposes that the new regulations will also require the Child Maintenance Service to give the same 7- or 28-day notice period to a paying parent prior to the making of an administrative liability order. This notice of intention to make an order will give details of the amount of unpaid child maintenance, to allow the paying parent time to contact the Child Maintenance Service and make payment or raise a dispute against the balance of arrears before a liability order comes into force.

Where a paying parent pays the whole amount of the arrears within the 7- or 28-day period, it is proposed that the administrative liability order will not come into force.

Once an administrative liability order has been made, there may be situations in which the order can be discharged. It is proposed that the regulations will allow an administrative liability order to be discharged where the maintenance calculation on which the order is based (the amount of arrears) has changed since the order was made.

The Department also proposes that if an appeal against the maintenance calculation is made to the Appeals Service for a period covered by an administrative liability order, the order can be discharged. This prevents an order being held in place against a paying parent for a period of child maintenance which is actively under dispute. The discharge of the order will not affect the paying parents’ rights to continue their appeal against the maintenance calculation and will not prevent any future order being made after the dispute is resolved.

Currently, before applying to the Magistrates’ Courts for a liability order, the Child Maintenance Service must give a paying parent at least 7 days’ notice of the intention to do so. If the parent lives overseas there is a minimum notice period of 28 days. This process has been in place for many years and has been successful in ensuring that paying parents are given warning of the proposed action before an application is made.

The Department proposes that the new regulations will also require the Child Maintenance Service to give the same 7- or 28-day notice period to a paying parent prior to the making of an administrative liability order. This notice of intention to make an order will give details of the amount of unpaid child maintenance, to allow the paying parent time to contact the Child Maintenance Service and make payment or raise a dispute against the balance of arrears before a liability order comes into force.

Where a paying parent pays the whole amount of the arrears within the 7- or 28-day period, it is proposed that the administrative liability order will not come into force.

Sections 5.7 and 5.8

Once an administrative liability order has been made, there may be situations in which the order can be discharged. It is proposed that the regulations will allow an administrative liability order to be discharged where the maintenance calculation on which the order is based (the amount of arrears) has changed since the order was made.

The Department also proposes that if an appeal against the maintenance calculation is made to the Appeals Service for a period covered by an administrative liability order, the order can be discharged. This prevents an order being held in place against a paying parent for a period of child maintenance which is actively under dispute. The discharge of the order will not affect the paying parents’ rights to continue their appeal against the maintenance calculation and will not prevent any future order being made after the dispute is resolved.

Appeals

It is important to ensure there are robust mechanisms in place to allow a paying parent to appeal the making of an administrative liability order so that they can challenge this decision where appropriate.

When a liability order is granted under the current arrangements, the Magistrates’ Court will consider whether the debt in question has become payable and whether it has not been paid. The jurisdiction of the Magistrates’ Court does not include consideration of the Child Maintenance Service calculation on which the debt is based, as appeals against the maintenance calculation are made separately to the Appeals Service.

The Department proposes that the regulations for administrative liability orders will set out the paying parent’s right of appeal to a Magistrates’ Court against the decision to make the order and the period within which the right of appeal may be exercised.

The Department considers that appeals against administrative liability orders should reflect the appeal rights already available to paying parents against other child maintenance enforcement measures, such as those which allow for deductions of child maintenance directly from a parent’s bank account. These types of appeals have operated successfully for many years and provide a fair, independent process by which an appeal can be raised.

To give an example, appeals against deductions directly from a paying parent’s bank account can be made to the Magistrates’ Court within 21 days from the date that the order is made. These appeals are made directly to the Magistrates’ Court by completing the relevant court application form which is available both from the court and online.

The Department proposes that the regulations should allow a right of appeal to the Magistrates’ Court within 21 days from the date that an administrative liability order is made. As with appeals against deductions directly from a paying parent’s bank account, this will mean that appeals can also be made directly to the Magistrates’ Court without a parent needing the agreement of the Child Maintenance Service.

As the jurisdiction of the Magistrates’ Court does not include consideration of the Child Maintenance Service calculation on which the debt is based, we consider any more detailed grounds for appeal can be set out in the Magistrate’s Court rules. The Department therefore proposes not to make any restrictions upon the grounds for appeal in child maintenance regulations, other than allowing an appeal against the making of an administrative liability order. This would maintain consistency with appeals against deductions directly from a paying parent’s bank account.

The powers being brought into force also allow for regulations to made whilst respecting the authority of the powers of the Magistrates’ Court. However, the Department wishes to avoid making regulations that place any unreasonable restriction upon the courts. The Department therefore proposes the regulations will confirm that the Magistrates’ Court may cancel the administrative order where it finds it appropriate to do so, i.e. if the Child Maintenance Service loses the appeal.