Over the years I’ve encountered many of the ingenious ways in which parents try to avoid paying child support, but I have never before seen the approach attempted by one father in a recent Scottish Court of Session case.
In Child Maintenance and Enforcement Commission [‘CMEC’] v Wilson, a liability order was made against the said Mr Wilson in 2007, for payment of £211.48 of Child Support Maintenance arrears, together with expenses of £58.04.
Mr Wilson did not pay and CMEC took enforcement proceedings against him.
At a hearing before the sheriff Mr Wilson sought to avoid enforcement action being taken against him by maintaining that he had made an offer to pay CMEC in the form of a promissory note, which he claimed was ‘as good as cash’.
A promissory note is rather like an IOU, with the exception that it does not just acknowledge that the maker owes the debt, but also includes a specific promise by them to pay. Unfortunately, the report of this case does not include details of the promise that Mr Wilson made, but does say that he never in fact intended to keep to the promise (more of which in a moment).
Needless to say, the sheriff was not impressed. He said that the promissory note was not legal tender, and he therefore disqualified Mr Wilson from driving for a period of 18 months.
Mr Wilson, however, was not prepared to give up there and lodged an appeal.
The appeal was heard by the Sheriff Principal. Before him, Mr Wilson argued that a promissory note tendered by him and not rejected by CMEC discharged his liability under the liability order.
The Sheriff Principal was also unimpressed. He said that Mr Wilson was not entitled to dictate to CMEC whether not they should accept his note as a method of payment. Accordingly, the appeal was dismissed.
Mr Wilson lodged a further appeal.
This time the appeal was heard by the Court of Session. Mr Wilson made no further headway with his arguments. The Court of Session found that a creditor cannot be obliged to accept a promissory note, and there was no evidence here that CMEC had agreed to accept it. CMEC were entitled to payment in legal tender.
Accordingly, this appeal was also dismissed.
As I mentioned earlier, Mr Wilson informed the sheriff that he never intended to honour the promise made in the promissory note. In fact, he seemed to be attempting to make a mockery of the whole system as he suggested that, in the event of him defaulting on the note, “it would be dealt with in the same way as a default by the Bank of England and his promissory note might become part of the national debt.”
Not very amusing perhaps. We also learn that Mr Wilson, like so many others, is a serial child support defaulter. He has, in fact, been banned from driving on three previous occasions for failure to pay in respect of other liability orders and (although this is not clear from the report) it appears that the total amount he owes is some £15,000.
Obviously, the repeated driving bans are not having the desired effect. Meanwhile, the only one who suffers is the child who should be benefiting from all those child support payments.
Just yesterday the Department for Work & Pensions announced that the reform of the child support system was proceeding, with all new cases now being dealt with by the new Child Maintenance Service. Whether they will have any more success dealing with the likes of Mr Wilson, we shall have to wait and see.
Photo by Images_of_Money via Flickr under a Creative Commons licence
John Bolch is a family law commentator