Child Maintenance and Other Payments Act 2008

29 Commitment to prison

(1) In section 40 of the Child Support Act 1991 (c. 48) (commitment to prison), before subsection (3) insert—

“(2A) The Commission may apply to a magistrates' court for the issue of a warrant committing a person to prison where—

(a) it has sought to recover an amount from the person by means of taking enforcement action by virtue of section 35 or 38, or by means of a third party debt order or a charging order by virtue of section 36;

(b) the whole or any part of the amount remains unpaid; and

(c) the Commission is of the opinion that there has been wilful refusal or culpable neglect on the part of the person from whom it has sought to recover the amount (“the liable person”).

(2B) For the purposes of subsection (2A)(a), the Commission is to be taken to have sought to recover an amount by means of a charging order if an interim charging order has been made, whether or not any further steps have been taken to recover the amount.

(2C) On an application under subsection (2A) the court shall (in the presence of the liable person) inquire as to—

(a) the liable person’s means; and

(b) whether there has been wilful refusal or culpable neglect on the part of the liable person.

(2D) On an application under subsection (2A) the court shall not question—

(a) the liability order by reference to which the Commission acted as mentioned in paragraph (a) of that subsection; or

(b) the maintenance calculation by reference to which that liability order was made.”

(2) For subsection (10) of that section, substitute—

“(10) On acting as mentioned in subsection (3), the court may order the liable person to be searched.

(10A) Any money found on such a search shall, unless the court otherwise directs, be applied towards payment of the relevant amount; and the balance (if any) shall be returned to the person searched.

(10B) The reference in subsection (10A) to the relevant amount is—

(a) where the order under subsection (10) is made by virtue of the court acting under subsection (3)(a), to the amount mentioned in subsection (4)(a);

(b) where the order under subsection (10) is made by virtue of the court acting under subsection (3)(b), to the amount mentioned in subsection (4)(a)(i).

(10C) The court shall not allow the application under subsection (10A) of money found on a search under subsection (10) if it is satisfied that the money does not belong to the person searched.”

(3) In section 40A of that Act (commitment to prison: Scotland), before subsection (1) insert—

“(A1) The Commission may apply to the sheriff for the issue of a warrant committing a person to prison where—

(a) it has sought to recover an amount from the person by means of taking enforcement action by virtue of section 35 or 38, or by means of a third party debt order or a charging order by virtue of section 36;

(b) the whole or any part of the amount remains unpaid; and

(c) the Commission is of the opinion that there has been wilful refusal or culpable neglect on the part of the person from whom it has sought to recover the amount (“the liable person”).

(A2) For the purposes of subsection (A1)(a), the Commission is to be taken to have sought to recover an amount by means of a charging order if an interim charging order has been made, whether or not any further steps have been taken to recover the amount.

(A3) On an application under subsection (A1), the sheriff shall (in the presence of the liable person) inquire into—

(a) the liable person’s means; and

(b) whether there has been wilful refusal or culpable neglect on the part of the liable person.

(A4) On an application under subsection (A1), the sheriff shall not question—

(a) the liability order by reference to which the Commission acted as mentioned in paragraph (a) of that subsection; or

(b) the maintenance calculation by reference to which that liability order was made.”

(4) After subsection (7) of that section, insert—

“(7A) On acting as mentioned in subsection (1), the sheriff may order the liable person to be searched.

(7B) Any money found on such a search shall, unless the sheriff otherwise directs, be applied towards payment of the relevant amount; and the balance (if any) shall be returned to the person searched.

(7C) The reference in subsection (7B) to the relevant amount is—

(a) where the order under subsection (7A) is made by virtue of the court acting under subsection (1)(a), to the amount mentioned in subsection (2)(a);

(b) where the order under subsection (7A) is made by virtue of the court acting under subsection (1)(b), to the amount mentioned in subsection (2)(a)(i).

(7D) The sheriff shall not allow the application under subsection (7B) of money found on a search under subsection (7A) if the sheriff is satisfied that the money does not belong to the person searched.”