The Gazette 1976

GAZETTE

JUNE/JULY 1976

residence or resumes residence in the State. There has been a good deal of discussion about the ideal length of the limitation period or whether any limitation period is needed at all. One interesting feature of the Act is that, where a person who is not the mother brings maintenance proce?dings against one of the child's parents (as he may now do under the amended s. 4A(l) of the Illegitimate Children (Affiliation Orders) Act 1930), no limitation period is expressed. Arguably therefore, in a situation where a mother has failed to bring proceedings against the alleged father within the 3 year period, it may still be possible for some third party (a social worker perhaps) to bring proceedings against him for the support of his child at a later date. But this argument will only hold water if a Court is prepared to accept that the right to bring maintenance proceedings against the father of an illegitimate child implies also the right to bring proceedings to have the alleged father ad- judged the "putative" father (i.e. affiliation proceed- ings). The reason is that a maintenance order can be obtained by a third party only against a "putative" father (see amended s. 4A(4) of the 1930 Act). If such a right cannot be implied and it is not possible for a third party to bring maintenance proceedings against the alleged father of a child, who has not yet been adjudged the putative father, then one can see little value in permitting third party proceedings at all. One of the reasons for allowing third parties to bring pro- ceedings is to protect the child's interests in cases where the mother is not for whatever reason prepared to act. If an affiliation order has to be obtained before the third party can bring maintenance proceedings, and if the only person who may bring affiliation proceed- ings is the mother (or a local body giving relief to the mother), then the safeguard is lost. S. 9 of the Act takes a considerable burden off the shoulders of the maintenance creditor by requiring the Court to order the maintenance debtor to transmit pay- ments through the District Court Clerk, and by re- quiring the Clerk, in a case of default, at the request of the creditor, to take steps to recover arrears, in- cluding the institution of enforcement proceedings. The Court must order payments to be made through the Clerk unless the creditor requests the Court not to do so and the Court thinks it proper not to do so. Such an order may be discharged on the application of the debtor, provided the creditor is given an opportunity to oppose the application and provided also that the Court is satisfied that, having regard to the debtor's record of payments and other circumstances, it is pro- per to do so. The Clerk cannot on his own initiative commence enforcement proceedings; a written request from the creditor to do so is required. And even then the creditor's right personally to bring enforcement proceedings is preserved. Clearly in most cases the Clerk will be ordered by the Court to act as collecting agent, and will be request- ed, where default occurs, to institute enforcement pro- ceedings. This procedure certainly has advantages from the creditor's point of view and knowledge of its existence may persuade some maintenance debtors to be more assiduous in keeping up payments. But there is one objection to the scheme. S. 9(2) gives the Clerk powei inter alia to "proceed in his own name for an atiachment o; earnings order or ot'neiwise." A situation may thus arise in which an olf'cer of the Section D. The Collection and Enforcement of Maintenance Payments.

Court becomes a party to a dispute before the Court, if a Clerk commences attachment proceedings and the debli r contests them on the ground e.g that he has a reasonable excuse (under s. 10(3)) for non payment, the Clerk may find himself in an argument with the debtor or the debtor's solicitor or counsel. The Clerk might avoid this situation at the outset by arguing that he considers it "unreasonable in the circumstances" (under s. 9(2)) to commence attachment proceedings himself. But once attachment proceedings have been begun by the Clerk it would be strange if he were to terminate them simply on the ground that ihey were likely to be contested. Whether the attachment of earnings provisions them- selves, which occupy Part III of the Act, will make a significant improvement in securing payment of main- tenance debts is difficult to predict. Indeed since no survey has been undertaken to assess the efficacy of existing enforcement procedures, there will unfortunat- ely be no basis for comparison. There are certain in- herent limitations in the attachment scheme. It c.'nnol operate in respect of persons who derive income from a source other than an employer (e.g. self-employed persons, persons living on unearned incomes, persons receiving unemployment benefit etc.). And in the case of an employed person it is doubtful whether the provisions of the Act are strong enough to prevent the classic method of maintenance avoidance, i.e. getting lost by a change of address and employment and pos- sibly even a change of name. In this context it is un- fortunate that, whereas the Act requires (s. 14(a)) the maintenance debtor to inform the Court of changes in his employment, no effective sanction is stipulated in case of non-compliance. The sanction set out in s. 20(1)

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