Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
The Child Maintenance and Other Payments Act 2008 (Commencement No. 12 and Savings Provisions)and the Welfare Reform Act 2012 (Commencement No. 15) Order 2013
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Nov 27, 2013, 10:18 AM
Article ID :104201
This Order may be cited as the Child Maintenance and Other Payments Act 2008 (Commencement No. 12 and Savings Provisions) and the Welfare Reform Act 2012 (Commencement No. 15) Order 2013.
The following provisions of the 2008 Act come into force for all purposes, in so far as those provisions are not already in force, on 25th November 2013, except where the saving in article 3 applies-
(a) sections 16 (changes to the calculation of maintenance), 17 (power to regulate supersession) and 18 (determination of applications for a variation) and Schedule 4 (changes to the calculation of maintenance);
(b) section 57(1) and paragraph 1(1) of Schedule 7 (minor and consequential amendments), so far as relating to the sub-paragraphs of paragraph 1 referred to in paragraph (c);
(c) paragraph 1(2), (28) and (29) of Schedule 7;
(d) section 58 (repeals), so far as relating to the entries referred to in paragraph (e); and
(e) in Schedule 8 (repeals), the entries relating to-
(i) Schedule 1 (maintenance calculations) to the 1991 Act;
(ii) Schedule 24 (social security, child support and tax credits) to the Civil Partnership Act 2004.
This Order brings into force provisions of the Child Maintenance and Other Payments Act 2008 (c. 6) ("the 2008 Act") for the purpose of applying new rules for calculating child support maintenance to all cases other than existing cases. It also brings into force provisions in the Welfare Reform Act 2012 (c. 5).
The 2008 Act amends the statutory scheme for calculation, collection and enforcement of child support maintenance, as originally set out in the Child Support Act 1991 (c. 48) ("the 1991 Act") and amended by the Child Support, Pensions and Social Security Act 2000 (c. 19) ("the 2000 Act"). The amendments made by the 2000 Act were brought into force by the Child Support, Pensions and Social Security Act 2000 (Commencement No. 12) Order 2003 (S.I. 2003/192) for new applications after 3rd March 2003 and for existing cases related to such applications.
However, the original provisions of the 1991 Act remained in force for a substantial number of cases, effectively resulting in two separate schemes. The further amendments made by the 2008 Act, together with the 2000 Act amendments, constitute a third scheme ("the new calculation rules").
The Child Maintenance and Other Payments Act 2008 (Commencement No. 10 and Transitional Provisions) Order 2012 (S.I. 2012/3042) brought the amendments made by the 2008 Act into force for new applications made on or after 10th December 2012 where there were four or more children with the same person with care and non-resident parent and no existing case with the same person with care and non-resident parent and for existing cases related to such applications.
The Child Maintenance and Other Payments Act 2008 (Commencement No. 11 and Transitional Provisions) Order 2013 (S.I. 2013/1860) brought those amendments into force for new applications made on or after 29th July 2013 where there were two or three children with the same person with care and non-resident parent and no existing case with the same person with care and non-resident parent and for existing cases related to such applications.
Article 2 brings into force on 25th November 2013 the amendments made by the 2008 Act, in so far as they are not yet in force, for all purposes except where the saving in article 3 applies.
Article 3 is a savings provision which provides that the commencement of the 2008 Act provisions does not apply to existing cases. The calculation rules applicable to the case before the commencement of the 2008 Act provisions continue to apply until liability ceases to accrue in relation to that case (subject to article 4), until the Secretary of State notifies the parent with care that he has ceased acting where there is an application that has been made but not determined, or until article 5 applies.
Article 4 provides for a thirteen week linking rule so that the new calculation rules will not apply to an existing case if a person asks the Secretary of State to cease acting and reapplies to the statutory scheme within 13 weeks.
Article 5 provides for the application of the new calculation rules to an existing case where: a new application is made in relation to the non-resident parent in the existing case and there is a different parent with care; or a non-resident parent is the partner of a non-resident parent named in a new application and either of those non-resident parents claims a prescribed benefit.
Article 6 brings section 136 of the Welfare Reform Act 2012 into force. Section 136 inserts provision into the 1991 Act which enables the Secretary of State to take appropriate steps to encourage the making and keeping of family-based maintenance agreements, including inviting an applicant to consider whether it is possible to make such an agreement, before an application for child support maintenance is accepted. Article 6 also brings into force sections 140 and 141 of the Welfare Reform Act 2012, which amend section 6 of the 2008 Act (section 6 gives the Secretary of State power to make regulations about charging fees). Section 140 clarifies that section 6 can be used to make provision for the apportionment of fees and waiver of fees and matters to be taken into account in determining such apportionment and waiver. Section 141 requires the Secretary of State to review the effect of the first regulations made under section 6 and provides when that review must be carried out and the action that must be taken following that review.