Driving licence or passport removal or prison
Section 27 of the Child Maintenance and Other Payments Act 2008 and the Welfare Reform Act 2009 give the power to remove an individual’s passport for up to two years.
The Department for Work and Pensions has refused to publish statistics on the numbers of parents receiving a driving disqualification or a suspended or immediate prison sentence via the Child Maintenance Service, launched in 2012, in order to obscure the fact that the CMS has not used these powers at all since then.
In December 2006 Work and Pensions Secretary John Hutton during the Labour Government wrote in his Ministerial Foreword to “A New System of Child Maintenance” (page 5):
“New enforcement powers will radically strengthen the recovery of maintenance from those who repeatedly fail to pay – including through the imposition of curfews and the suspension of passports.”
Section 51 of the Welfare Reform Act 2009 explanatory notes: “Disqualification for holding etc. driving licence or travel authorisation”
In 2011 the Independent reported that:
“Between April 2007 and March 2008, 25 people were sent to prison for missed payments and 480 were given suspended sentences. Figures for the first half of 2010/11 show that 35 parents were imprisoned and 635 had suspended sentences: the final tally is expected to be at least 50 and 900 respectively.”
“Craig Pickering, of Families Need Fathers, said: "How can a father or mother care and provide for their children if they are stuck in prison? It is imperative that child maintenance is seen in the context of looking after the child's best interests in every way. A parent is more than a walking wallet."
As always the fathers’ rights lobby glosses over the fact that fathers who were in the past (not any more!) sent to prison had refused to pay child support.
House of Commons Work and Pensions Committee
The Child Maintenance and Enforcement Commission and the Child Support Agency’s Operational Improvement Plan 24 February 2010
“63. The Child Maintenance and Other Payments Act 2008 and the Welfare Reform Act 2009 have given the Commission a range of new administrative powers to support its enforcement activities and collection of arrears, which do not require recourse to the courts. These include the power to disqualify parents from holding or obtaining a driving licence or travel authorisation for up to 12 months; Since 3 August 2009, the Child Support Collection and Enforcement (Deduction Orders) Amendment Regulations have also given the Commission the power to collect child maintenance direct from the bank account of a non-resident parent.”
On 28 November 2011 Lord De Mauley told Peers: “The noble Lord, Lord McKenzie, asked for an update on the powers taken in the 2008 Act. The Government remain committed to pursuing arrears and will continue to use all of its expanded powers to this end while the Child Support Agency schemes remain open. We frequently use deductions from earnings orders, lump sum deductions and deductions from accounts. Parents who fail to pay now face tougher sanctions, including having money deducted directly from their bank accounts or having their home seized. Primary powers enable the Government administratively - so without application to a court - to disqualify a non-resident parent from holding a driving licence or passport where we are of the opinion that the non-resident parent has wilfully refused or culpably neglected to pay child maintenance. These powers are not yet in force, and prior to any final decision being made to commence them, public consultation on the detail of how they would work would need to take place. If the noble Lord so wishes, I can write to him detailing exactly what powers we currently use and what we still plan to bring forward.”
On 22 December 2011 the Work and Pensions Committee’s report into the Government’s proposed child maintenance reforms was published:
The Committee said: “We recommend that CMEC be provided with the full range of enforcement powers listed in the 2008 Act, including those which are currently uncommenced.”
The Government responded: “The Government agrees in principle with the Committee’s recommendation that the Commission should be provided with further enforcement powers, and will therefore consider when and how the powers already enshrined in previous primary legislation (the Child Maintenance and Other Payments Act 2008 and Welfare Reform Act 2009), which have not yet been introduced, can be brought into effect. The Government believes the statutory service needs to be working effectively before these additional powers are put in place. These would give the Commission the power to administratively (i.e. without application to court) disqualify a non-resident parent from holding a passport or driving licence. If these powers are commenced at some stage in the future, they will be subject to a 24 month trial period, as required by the 2009 Act, at the end of which Parliament will be asked to confirm its agreement to the powers being retained. The Government believes, as with the other more serious measures the Commission can take when non-resident parents do not comply with their obligations, that these powers will be very effective deterrents to non-compliance.”
On 10 March 2017 I made a Freedom of Information request asking for the number of individuals who had received an immediate or suspended prison sentence or driving disqualification since the launch of the Child Maintenance Service on 30 October 2012. T:he Department for Work and Pensions replied: “For the Child Maintenance Service, we provide statistics on Civil Enforcement, none of which directly matches your request.”
In December 2017 the Department for Work and Pensions published “Child Maintenance: A New Compliance and Arrears Strategy Methodology Paper” :
The Passport removal powers we propose to bring in will be used at the same stage in the enforcement process as the committal powers the CSA and CMS already possesses. Therefore, the frequency that committal powers are being used on CSA/CMS provides a good base estimate of the frequency that the passport removal power could be used when it is introduced.
We do not currently publish any statistics on the use of committal powers on CMS but we do publish such statistics for CSA. As a result of the redeployment of operational resource during CSA case closure, the number of committals issued to CSA paying parents fell significantly. Therefore, statistics on the number of committals issued before case closure started provide a more accurate picture of the frequency with which these powers were being used at steady state.
In the financial year 2011/12 – the last before the beginning of case closure –75 committal orders were issued to non-compliant paying parents, representing approximately 0.01% of the CSA caseload at that time.
Assuming that committals are being issued at the same rate on CMS (0.01% of the caseload annually) then we would expect approximate 20 CMS committals each year given the current caseload.
The passport removal power will be used alongside existing committal power (driving licence removal and committal to prison). Therefore, we do not expect 20 cases of passport removal but rather 20 cases per year where a court sanction would be applied, one such sanction being passport removal.”
Note: Although this number is shockingly low, in reality the figure will be much lower still. The DWP refuses to publish statistics on the Child Maintenance Service’s use of committal powers in order to obscure the fact that it is not using them.
In fact, the Department for Work and Pensions has had the power, at least in primary legislation, to refuse or remove passports for nearly thirty years. The power is contained in Section 39B-G of the Child Support Act 1991.
On 21 March 2018 the Department for Work and Pensions, in response to a Freedom of Information request, confirmed that no “paying parents” with arrears accrued under the Child Maintenance Service had been imprisoned during the years 2015, 2016 and 2017.
On 30 October 2018 Baroness Sherlock, debating the Child Support (Miscellaneous Amendments) Regulations, said: “Another question is on the confiscation of passports. The instrument also commences a power, set out in Sections 39B to 39G of the Child Support Act 1991, enabling the Secretary of State to apply to the court for an order to disqualify a non-resident parent who is wilfully refusing to pay from holding or obtaining a UK passport. This is again welcome but I wonder how well it would be used. The 39th report of the scrutiny committee quoted the department as saying: “This measure will be used as a last resort, where all other enforcement actions have been found to be inappropriate or ineffective”. When I went back to the methodology document that accompanied the consultation, it said that DWP expected approximately 20 cases per year where a court sanction would be applied. But then it became clear that that would be not 20 passports a year but 20 cases where court sanctions could be applied. Those sanctions might be passport removal but might be losing a driving licence or going to prison. That could mean this new power on passports might be in single-figure usage. Again, the letter to Frank Field from Justin Tomlinson suggested that this power could be used in around 20 cases a year. Can the Minister explain whether that is 20 cases of passport confiscation a year or whether we are still talking about 20 cases of court sanctions a year, of which some may or may not be on passports? Either way, it is a very small number. Clearly, I realise that it is intended to be a deterrent as well but that was said of driving licences, yet we are still stuck at 57% enforcement. We have to ask: how effective is this likely to be?”
On 12 November 2018 Parliamentary Under-Secretary of State for Work and Pensions, Justin Tomlinson told MPs, legislating on the power to write off Child Support Agency arrears:
“I plan to commence an existing power to enable the Child Maintenance Service to disqualify a paying parent with child maintenance arrears from holding a UK passport. The regulations make further provisions in respect of this power. The measure will only be used where a parent has consistently failed to meet their financial responsibility for their children and all our other enforcement powers have failed to regain compliance. It will operate in a similar way to existing sanctions of commitment to prison and disqualifications from holding or obtaining a driving licence. Given the serious nature of the power, it will be for the court to decide whether to disqualify a parent from holding or obtaining a UK passport. The court has the power to suspend the disqualification order on such conditions as the court thinks appropriate. Although the power will be used only in a small volume of cases, I expect it will be an effective deterrent to secure payments and maintenance as early in the case as possible.”
It is abundantly clear, when scrutinising the history of obfuscation, delay and denial around child maintenance enforcement - particularly since 2010 - that the Government has no intention of whatsoever of using this power. Its introduction into secondary legislation is purely to sweeten the pill of writing off £2.5 billion Child Support Agency arrears and give false reassurance to mothers, the public and Parliament that they are taking enforcement seriously.