DEDUCTIONS FROM PAY IN RESPECT OF LIABILITIES FOR MAINTENANCE: THE 1955 Acrs (Hansard, 17 June 1991)

§ Dr. Norman A. Godman (Greenock and Port Glasgow)

I had hoped to serve as a member of the Select Committee that considered the Bill, but for reasons best known to itself, the Whips' Office did not invite me to do so. I want to ask the Minister questions on clauses 14 and 15, which are concerned with deductions from pay in respect of maintenance liabilities.

Are clauses 14 and 15 compatible with the provisions of the Child Support Bill? I remind the Minister that clause 1 of that Bill sets out the duty of parents to maintain those of their children who are qualified children for the purposes of the Bill. It provides that where a parent is not living with a child, that duty is to be considered discharged by the making of periodic payments determined in accordance with the Bill's provisions.

Clause 4 of the Child Support Bill establishes the right of a person either having the care of a child or the absent parent to apply to the Secretary of State for a maintenance assessment. On Second Reading of the Child Support Bill, my hon. Friend the Member for Falkirk, East (Mr. Ewing) asked the Secretary of State for Social Services: Can the right hon. Gentleman tell me whether the Army Acts lay down that a commanding officer of a serving soldier has the right to set aside a court maintenance order if he thinks that the man concerned does not have enough income to meet it? Is the Secretary of State aware that I have been dealing with a constituency case in which the sheriff court in Falkirk made a child maintenance order but, because the absent parent happens to be a serving soldier, his commanding officer has time and again set aside the court order, and there is nothing that the mother of the two children concerned can do about it?"—[Official Report, 4 June 1991; Vol. 192, c. 187.] If that is the case, that is an appalling state of affairs. Can the Minister confirm that clauses 14 and 15 of the Armed Forces Bill are compatible with the legal provisions of the Child Support Bill?

§ Mr. Archie Hamilton

The purpose of clause 14 is to take into account the changes in the powers of courts to make orders for the financial relief of spouses and children, including where the parents were not married to each other.

It is in the nature of service pay that it may not be attached. Courts are therefore unable to make orders preventing a service man from receiving his pay arid for it to be paid to another person. However, the 19:55 Acts provide for compulsory deductions to be made from a service man's pay on the authorisation of the defence council or an officer authorised by it, where a maintenance order has been made by a court, including one in Her Majesty's dominions outside the United Kingdom.

In recent years, there have been a number of significant changes in civil law—most notably, the Family Law Reform Act 1987, which abolished the concept of illegitimacy in English law; the concept of "child of the family", most recently revised in the Children Act 1989; 54 and other provisions of that Act which re-enacted and amended existing provisions on orders for financial relief. All have affected the powers of courts to make orders, with the result that there is a mismatch between those powers and the powers of the defence council to order deductions from pay. The amendments to section 150 of the 1955 Acts ensure that the powers of the defence council are consistent with the powers of courts to make orders.

Although the concept of illegitimacy has gone from English and Scottish law, it still exists in law in Northern Ireland—and possibly in other countries whose courts' orders would be covered by the section. In order to ensure that the provisions now work for all the relevant countries in respect of illegitimate children, clause 14 makes clear that, for the purposes of the provision, a child is covered whether or not the parents are or have been married to each other. The clause therefore has to make clear also that that sort of dictionary definition in no way affects the operation of the enactments in England and Scotland which abolish the concept of illegitimacy.

In the same Session, the Government are introducing legislation to provide for a child support agency, which will make assessments of maintenance in all cases where the claiming parent is on benefit. Provisions covering service parents will be included in that legislation to ensure that they are neither advantaged nor disadvantaged by virtue of their service.

Subsection (5) amends the provision which empowers the defence council or an officer authorised by it to make deductions from service pay where it is satisfied that the service man or woman is failing to maintain his wife or any child of his.

There is doubt that the expression "any child of his" covers illegitimate children. Though there has been conflicting legal advice on that aspect over the years, both the Army and Air Force authorities have made deductions in respect of such children where paternity has been established and admitted. The amendment adds a new subsection to make the position clear for the future—that children of parents who are, or were not, married to each other are included in the provision. By construing the subsection as if it had always been in the Act, the amendment provides retrospective authority for deductions previously made from service pay under the section in respect of illegitimate children. I can therefore reassure the hon. Gentleman that the provisions of the Bill are compatible with legislation that has already been passed.