ERLANDSSON v. SWEDEN
Where the High Court or the family court makes a qualifying periodical maintenance order, it may at the same time exercise either of its powers under subsection (4) below in relation to the order, whether of its own motion or on an application made under this subsection by an interested party.
For the purposes of this section, a periodical maintenance order is an order— and such an order is a “qualifying periodical maintenance order” if, at the time it is made, the debtor is ordinarily resident in England and Wales.
which requires money to be paid periodically by one person (“the debtor”) to another (“the creditor”); and
which is a maintenance order;
Where the family court makes a qualifying periodical maintenance order, it may at the same time exercise any of its powers under subsection (4A) below in relation to the order, whether of its own motion or on an application made under this subsection by an interested party.
Where the High Court or the family court has made a qualifying periodical maintenance order, it may at any later time— exercise either of its powers under subsection (4) below in relation to the order.
on an application made under this subsection by an interested party, or
of its own motion, in the course of any proceedings concerning the order,
The powers mentioned in subsections (1) and (3) above are—
the power to order that payments required to be made by the debtor to the creditor under the qualifying periodical maintenance order in question shall be so made by such a method of payment falling within subsection (5) below as the court may specify in the particular case; or
the power, by virtue of this section, to make an attachment of earnings order under the Attachment of Earnings Act 1971 to secure payments under the qualifying periodical maintenance order in question.
The methods of payment mentioned in subsection (4)(a) above are—
payment by standing order; or
payment by any other method which requires the debtor to give his authority for payments of a specific amount to be made from an account of his to an account of the creditor’s on specific dates during the period for which the authority is in force and without the need for any further authority from the debtor; or
any method of payment specified in regulations made by the Lord Chancellor.
Where the family court has made a qualifying periodical maintenance order, it may at any later time— exercise any of its powers under subsection (4A) below in relation to the order.
on an application made under this subsection by an interested party, or
of its own motion, in the course of any proceedings concerning the order,
In any case where— the court in exercising its power under that paragraph may order that the debtor open such an account.
the court proposes to exercise its power under paragraph (a) of subsection (4) aboveor under paragraph (b) of subsection (4A) above, and
having given the debtor an opportunity of opening an account from which payments under the order may be made in accordance with the method of payment proposed to be ordered under that paragraph, the court is satisfied that the debtor has failed, without reasonable excuse, to open such an account,
Where in the exercise of its powers under subsection (1) , (1A), (3) or (3A) above, the High Court or the family court has made in relation to a qualifying periodical maintenance order such an order as is mentioned in subsection (4)(a) or (4A)above (a “means of payment order”), it may at any later time— revoke, suspend, revive or vary the means of payment order.
on an application made under this subsection by an interested party, or
of its own motion, in the course of any proceedings concerning the qualifying periodical maintenance order,
The powers mentioned in subsections (1A) and (3A) above are—
the power to order that payments under the qualifying periodical maintenance order in question be made to the court;
the power to order that payments under the qualifying periodical maintenance order in question required to be made to the court are to be so made by such method of payment falling within subsection (5) below as the court may specify in the particular case; or
the power to order that payments under the qualifying periodical maintenance order in question be made in accordance with arrangements for their collection made by the Secretary of State under section 30 of the Child Support Act 1991 and regulations made under that section.
In deciding whether to exercise any of its powers under this section the court in question having (if practicable) given every interested party an opportunity to make representations shall have regard to any representations made by any such party.
Nothing in this section shall be taken to prejudice— and subsection (7) above is without prejudice to any other power of the High Court or the family court to revoke, suspend, revive or vary an order.
any power under the Attachment of Earnings Act 1971 which would, apart from this section, be exercisable by the High Court or the family court; or
any right of any person to make any application under that Act;
For the purposes of this section— and the reference in subsection (2) above to an order requiring money to be paid periodically by one person to another includes a reference to an order requiring a lump sum to be paid by instalments by one person to another.
“debtor” and “creditor” shall be construed in accordance with subsection (2) above;
“debtor” and “creditor” shall be construed in accordance with subsection (2) above;
“interested party” means any of the following, that is to say—
“qualifying periodical maintenance order” shall be construed in accordance with subsection (2) above, and the references to such an order in subsections (3) and (7) above are references to any such order, whether made before or after the coming into force of this section;
the creditor; and
in a case where the person who applied for the qualifying periodical maintenance order in question is a person other than the creditor, that other person;
“interested party” means any of the following, that is to say—
the debtor;
“qualifying periodical maintenance order” shall be construed in accordance with subsection (2) above, and the references to such an order in subsections (3) and (7) above are references to any such order, whether made before or after the coming into force of this section;
the creditor; and
in a case where the person who applied for the qualifying periodical maintenance order in question is a person other than the creditor, that other person;
No order made by the family court under subsection (4) or (4A)(a) or (b) above has effect at any time when the Secretary of State is, under section 30 of the Child Support Act 1991 and regulations made under that section, arranging for the collection of payments under the qualifying periodical maintenance order in question.
The power of the Lord Chancellor to make regulations under subsection (5)(c) above is exercisable by statutory instrument, and a statutory instrument containing regulations under subsection (5)(c) is subject to annulment in pursuance of a resolution of either House of Parliament.
For section 59 of the Magistrates’ Courts Act 1980 (periodical payments through justices’ clerk) there shall be substituted the following section—
After section 59 of the Magistrates’ Courts Act 1980 (orders for periodical payment: means of payment), as substituted by section 2 above, there shall be inserted the following sections—
For section 60 of the Magistrates’ Courts Act 1980 (revocation, variation etc., of orders for periodical payment) there shall be substituted the following section—
After section 20 of the Domestic Proceedings and Magistrates’ Courts Act 1978 (variation, revival and revocation of orders for periodical payments) there shall be inserted the following section—
In Schedule 1 to the Children Act 1989 (financial provision for children), after paragraph 6 (variation etc. of orders for periodical payments) there shall be inserted the following paragraph—
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In section 24A of the Social Security Act 1986 (recovery of expenditure on income support: additional amounts and transfer of orders under s.24), after subsection (4) (transfer of right to receive payments under the order to the dependent parent) there shall be inserted the following subsection—
After subsection (7) of that section (transfer back of right to receive payments under the order to the Secretary of State) there shall be inserted the following subsections—
Schedule 1 to this Act, which by amending certain enactments applies some of the preceding provisions of this Act with modifications to maintenance orders registered in or confirmed by magistrates’ courts or registered in the High Court, shall have effect.
Schedule 2 to this Act, which contains minor amendments and amendments consequential on the provisions of this Act, shall have effect.
The enactments specified in Schedule 3 to this Act are hereby repealed to the extent specified in the third column of that Schedule.
This Act may be cited as the Maintenance Enforcement Act 1991.
The provisions of this Act, other than this section (which comes into force on the passing of this Act), shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be so appointed for different provisions or for different purposes of the same provision.
In the application of any amendment made by this Act which has effect in relation to orders made, confirmed or registered by a court, it is immaterial whether the making, confirmation or registration occurred before or after the coming into force of the amendment.
Except for paragraphs 3 to 6 of Schedule 1, section 10 (in so far as it relates to those paragraphs) and this section, which extend to Scotland and Northern Ireland, this Act extends to England and Wales only.
Section 10.
In section 4 of the Maintenance Orders (Facilities for Enforcement) Act 1920 (power of court of summary jurisdiction to confirm maintenance order made out of UK), after subsection (5) there shall be inserted the following subsections— For subsection (6) of that section (which provides that where a provisional order is confirmed it may be varied or rescinded as if it had been made by the confirming court and includes power to remit the order to the court which made it) there shall be substituted the following subsections—
In section 6 of that Act (mode of enforcing orders registered in or confirmed by courts under Act), in subsection (2) (which provides that if the order is of such a nature that if made by the court it would be enforceable as a magistrates’ court maintenance order it shall be so enforceable), for the words “the order shall be so enforceable” there shall be substituted “ the order shall, subject to the modifications of sections 76 and 93 of the Magistrates’ Courts Act 1980 (enforcement of sums adjudged to be paid and complaint for arrears) specified in subsections (2ZA) and (2ZB) of section 18 of the Maintenance Orders Act 1950 (enforcement of registered orders), be so enforceable ”.
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In section 19 of that Act (functions of collecting officers, etc.), in subsection (2) (court to order that payments under maintenance order registered in court of summary jurisdiction in England or Northern Ireland be made to collecting officer, unless court satisfied it is undesirable to do so) for the words “unless it is satisfied that it is undesirable to do so” there shall be substituted “ unless, in the case of a court of summary jurisdiction in Northern Ireland, it is satisfied that it is undesirable to do so ”. For subsection (3) of that section (order under subsection (2) may be varied or revoked) there shall be substituted the following subsection—
In section 22 of that Act (discharge and variation of maintenance orders registered in summary or sheriff courts), after subsection (1) (power of registering court to vary rate of payments under order) there shall be inserted the following subsections—.
In section 24 of that Act (cancellation of registration), after subsection (5) (effect of cancellation of order registered in court of summary jurisdiction) there shall be inserted the following subsection—
In section 2 of the Maintenance Orders Act 1958 (registration of orders), for subsection (6) (section 19(1) to (4) of Maintenance Orders Act 1950 to have effect for the purposes of Part I) there shall be substituted the following subsections—
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After section 4 of that Act (variation of orders registered in magistrates’ courts) there shall be inserted the following section—
In section 5 of that Act (cancellation of registration), for subsection (5) (effect of cancellation on order registered in magistrates’ court) there shall be substituted the following subsections—
In section 7 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (confirmation by UK court of provisional maintenance order made in reciprocating country), after subsection (5) (registration etc. of order) there shall be inserted the following subsections—
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In section 34 of that Act (variation and enforcement of orders), at the beginning of subsection (1) (order registered in court other than court which made it variable as if made by registering court) there shall be inserted the words “ Subject to section 34A of this Act ”. After that section there shall be inserted the following section—
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Section 11(1).
In section 3 of the Attachment of Earnings Act 1971 (application for attachment of earnings order and conditions of court’s power to make it), in subsection (1) (persons who may apply for order), in paragraph (c) for the words “section 59(1)” there shall be substituted “ section 59 ”. Subsection (2) of that section (application, other than by debtor, for attachment of earnings order to secure maintenance payments not to be made unless at least 15 days have elapsed since maintenance order made) shall cease to have effect. At the beginning of subsection (3) of that section (attachment of earnings order not to be made, other than on application of debtor, unless one or more payments have not been made) there shall be inserted the words “ Subject to subsection (3A) below ”. After that subsection there shall be inserted the following subsection— In subsection (4) of that section (power of court to make attachment of earnings order where certain enforcement proceedings brought), the words “subject to subsection (5) below” shall cease to have effect. Subsection (5) of that section (attachment of earnings order not to be made, other than on application of debtor, if debtor’s failure to make payments is not due to his wilful refusal or culpable neglect) shall cease to have effect.
In section 23 of the Domestic Proceedings and Magistrates’ Courts Act 1978 (supplementary provisions with respect to variation and revocation of orders), in subsection (2) (power of magistrates’ court under section 60 of 1980 Act to vary etc. order not to apply to order under Part I of Act)—
after the word “money” there shall be inserted “ and the power of the clerk of a magistrates’ court to vary such an order ”; and
after the word “and” there shall be inserted “ the power of a magistrates’ court ”.
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for the words “subsection (2)” there shall be substituted “subsection (7)”; and
for the words ““the applicant for the order”” there shall be substituted ““the person who applied for the maintenance order””.
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for the words “section 59” there shall be substituted “sections 59 and 59A”; and
after the words “justices' clerk” there shall be inserted “and proceedings by the clerk, etc.”.
In section 62 of the Magistrates’ Courts Act 1980 (provisions as to payments required to be made to a child, etc), in subsection (1) (which permits payments to be made to person with whom child has his home and permits that person to request clerk of court, under section 59(3) of 1980 Act, to proceed for recovery of arrears), in sub-paragraph (ii) for the words “request the clerk to the magistrates’ court, under subsection (3) of section 59 above” there shall be substituted “ request or authorise the clerk of the magistrates’ court under subsection (1) or subsection (2) respectively of section 59A above ”.
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In section 143 of that Act (power to alter sums specified in certain provisions), in subsection (2) (which lists those provisions) after paragraph (d) there shall be inserted the following paragraph—.
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Section 11(2). Chapter Short title Extent of repeal 1971 c. 32. The Attachment of Earnings Act 1971. In section 3, subsection (2), in subsection (4) the words “subject to subsection (5) below”, and subsection (5). 1972 c. 18. The Maintenance Orders (Reciprocal Enforcement) Act 1972. Section 27(9). 1980 c. 43. The Magistrates’ Courts Act 1980. In Schedule 7, paragraph 97(b). 1989 c. 41. The Children Act 1989. In Schedule 13, paragraph 44(1).