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.

Section D. The Collection and Enforcement of

Maintenance Payments.

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."

situation may thus arise in which an olf'cer of the

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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