News

Enforcing child support

THUS FAR I have examined the law relating to the legal duty imposed on persons to maintain certain children ,whether such children are born in or out of wedlock. I have also managed to highlight some aspects of the legal process involved in obtaining an order for child maintenance and the effect of such orders once obtained.

In this the final part of my focus on the maintenance of children, I propose to turn brief attention to the enforcement of orders in the case of delinquency on the part of the person liable to make payments by virtue of the order. The Affiliation Act provides in section 5 (8) that an affiliation order may be enforced after the expiration of one week from the date the order was made if the payments required to be made are in arrears.

Similarly, the Maintenance Act in section 17 sets out that an order of maintenance may be enforced in the Resident Magistrate's Court in the event of any default in payment. The party to whom payment is to be made is, therefore, empowered to apply for enforcement of the order in the event of default.

In circumstances where the money is ordered to be paid into the court's office to a collecting officer it is for that officer to take steps for the enforcement of the order. Both the Affiliation and the Maintenance Acts provide that when payment is 14 days in arrears, the collecting officer may apply to a resident magistrate for a warrant to be issued for the enforcement of the order.

The enforcement of the orders for maintenance of a child can take different forms. Both the Maintenance and Affiliation Acts provide that enforcement may be in any manner prescribed by Parts 1 and 111 of the Justice of the Peace (Jurisdiction) Act which deal with the enforcement of orders for the payment of money. Both statutes also prescribe the course to be adopted by the collecting officer in cases of default.

In any event, once there is a default, the magistrate upon a complaint alleging disobedience of the order, may issue a warrant directing that the sum of money owed be recovered by distress and sale of the goods and chattels of the person liable to make payment. Where there is no sufficient distress to cover the debt then the magistrate may issue a warrant to have the delinquent party brought before the court to make payment of the sum due. If the person neglects or refuses without reasonable cause to pay the sum due, the magistrate may commit him to prison for a period of up to three months unless the money is paid.

For the person to be sent to prison, however, the court must be satisfied that the default is due to that person's 'willful refusal' or 'culpable neglect'. Committal to prison in the case of default does not operate to discharge the liability and so even with imprisonment, the money is still due to be paid and is recoverable.

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