Maintenance of and Access to Children Act, 2008

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ANTIGUA AND BARBUDA

THE MAINTENANCE OF AND ACCESS TO CHILDREN ACT, 2008

No. 1 of 2008

[Published in the Official Gazette Vol. XXVIII No. 38
dated 5th June, 2008. ]

________
Printed at the Government Printing Office, Antigua and Barbuda,

by Eric T. Bennett, Government Printer
— By Authority, 2008.

No. 1 of 2008.The Maintenance of and Access to Children Act, 2008. 2

No. 1 of 2008. The Maintenance of and Access to Children Act, 2008.3

THE MAINTENANCE OF AND ACCESS TO CHILDREN ACT, 2008

ARRANGEMENT

Sections

1. Short title

2. Interpretation

3. Obligation to maintain and protect child and access to a child

4. Court shall deal with access and maintenance together

5. Court orders

6. Application for order

7. False statements

8. Court to consider child’s best interest

9. Court to be satisfied

10. Powers of court

11. Mediation

12. Maintenance Collection Account

13. Alternate payment methods

14. Contravention of access orders

15. Contravention of maintenance orders

16. Contravention of order

17. Execution of Warrants

18. Attachment Order

19. Application for order of attachment

20. Duration of order

21. Arrears during period of committal

22. Summons for a person attempting to leave Antigua and Barbuda

No. 1 of 2008.The Maintenance of and Access to Children Act, 2008. 4

23. Power of the court to prohibit a person from leaving A tigua and Barbuda or from removing

a child

24. Contravention of order

25. Power to arrest without warrant

26. Misapplying funds

27. High Court

28. Regulations

29. Appointments by the Minister

30. Appeal

31. Repeal

No. 1 of 2008. The Maintenance of and Access to Children Act, 2008.5

No. 1 of 2008.The Maintenance of and Access to Children Act, 2008. 6

AN ACT to provide for the maintenance of and access to children and for incidental and connected
purposes.

ENACTED by the Parliament of Antigua and Barbuda as follows:

1. Short title

This Act may be cited as the Maintenance of and Access to Children Act, 2008 and comes into
operation on the date that the Minister may, by Notice published in the Gazette, appoint.

2. Interpr etation

In this Act—

“access” means the opportunity to participate in the upbringing of a child and to regularly visit
with that child;

“attachment order” means an order to have funds for the maintenance of a child deducted from
the emoluments of a person so that they may be utilized according to the terms of a maintenance
order;

“child” means—

(a) a person under the age of 18 years whether born in or out of wedlock and includes a child
adopted in a manner recognised by law;

ANTIGUA AND BARBUDA

THE MAINTENANCE OF AND ACCESS TO CHILDREN ACT, 2008

No. 1 of 2008

[L.S.]

I Assent,

Louise Lake-Tack,
Governor-General.

27th May, 2008

No. 1 of 2008. The Maintenance of and Access to Children Act, 2008.7

(b) a person 18 years and older whose special circumstances are such that he is unable to
reasonably provide for his daily requirements; or

(c) a person 18 years of age or older but under the age of 25 years who is receiving education
at an educational institution or undergoing training for a trade, profession or vocation,
whether or not he is employed;

“Commissioner” means the Commissioner of Police of the Royal Police Force of Antigua and
Barbuda;
“court” except in section 27 means the Magistrate’s Court;

“DPP” means the Director of Public Prosecutions;

“maintenance” means the financial and other support services necessary to provide for the
needs and upbringing of a child and includes all sums payable for the benefit of the child
pursuant to an order of the court;

“maintenance order” means an order made pursuant to this Act for the maintenance of a child;
“Minister” means the Minister with responsibility for the administration of the courts;
“order” means an order made pursuant to this Act;

“parent” means the mother or father of a child and includes a person who has legally adopted
that child;

“respondent” means the person against whom an application is made.

3. Obligation to maintain and protect child and access to a child

(1) The parents of an unmarried child shall maintain that child.

(2) The parents of a child, or a person who assumes responsibility for a child, shall ensure as far as
possible that the child is protected from all forms of neglect, abuse and exploitation and any person
who contravenes this subsection is liable to be prosecuted pursuant to section 5 of the Juvenile Act,
Cap. 229.

(3) Where a person who is not the parent of a child assumes responsibility for the child, that person
shall maintain the child, but this obligation is secondary to that of the parents of the child.

(4) A person assumes responsibility for a child where—

(a) he marries one of the parents of the child and the child resides with him and the parent
that he marries; or

No. 1 of 2008.The Maintenance of and Access to Children Act, 2008. 8

(b) he has custody of, or is the guardian of a child, whether by order of the court or otherwise
and whether permanently or temporarily.

(5) Subsection to section 9(2), each parent of a child and a person who has assumed responsibility
for a child pursuant to subsection (4), is entitled to have access to that child.

4. Court shall deal with access and maintenance together

(1) Where an application for an order for maintenance is being heard, the court shall also deal with
the issue of access to the child for whose benefit the application was made.

(2) Where an application for an order for access is being heard, the court shall also deal with the
issue of maintenance of the child for whose benefit the application was made.

5. Court orders

Where an application is made pursuant to this Act the court—

(a) shall give consideration to all relevant factors;

(b) may engage any person who, or any agency which, in the opinion of the court, is capable
of providing the knowledge or expertise necessary to assist the court in determining the
matter; and

(c) shall make any order in the best interest of a child regarding the maintenance of or access
to the child.

6. Application for order

(1) An application made pursuant to this Act shall be made in the form prescribed by Regulations.

(2) Any parent, or person who assumes responsibility for a child in accordance with section 3(4),
may make an application for any order provided for under this Act, including a maintenance or access
order or for the suspension, revival, variation or discharge of an order.

(3) A person who makes an application for an order under subsection (1) shall file together with
the application—

(a) the birth certificate of the child for whose benefit the application is being made;

(b) a statement of the expenses of that child with supporting documents;

No. 1 of 2008. The Maintenance of and Access to Children Act, 2008.9

(c) a statement of his income and expenses with supporting documents;

(d) a marriage certificate if the parties to the application are married;

(e) the custody order if such an order was previously made by any court in respect of the
child for whose benefit the application is being made;

(f) the guardianship agreement pertaining to the child if applicable; and

(g) any other existing order with respect to the child.

(4) Where an application for an order is being heard, the court may determine any issues regarding
a child before making an appropriate order.

7. False statements

(1) A person shall not submit false information

(a) in support of any application made pursuant to this Act;

(b) for the purpose of section 25;

(c) for any other purpose under this Act.

(2) A person who contravenes subsection (1) commits an offe ce and is liable on summary convic-
tion to a fine of one thousand dollars.

(3) Where on hearing an application made pursuant to this Act, the court determines that any
information submitted in support of an application, or in pursuance of any order made pursuant to this
Act is false the court may—

(a) dismiss the application; or

(b) order a person to resubmit the information with supporting documentation.

8. Court to consider child’s best interest

(1) When hearing an application for an order the court shall consider the best interest of the child
in all the circumstances and may give due regard to—

(a) the financial requirements of a child;

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(b) any other particular requirements that a child may have by virtue of any disability or
special circumstance;

(c) the educational requirements and expenses of a child;

(d) the standard of living of the child, the applicant and the respondent;

(e) the age, income, earning capacity, property and other financial resources of both the
applicant and the respondent;

(f) the financial requirements, obligations and responsibilities of both the applicant and the
respondent;

(g) whether there are other children to be maintained by the applicant or the respondent;

(h) the relationship between the parties to the application and the child for whose benefit the
application is being made and the effect of that relationship on the child; and

(i) any other matters that the court considers just and equitable.

(2) Where the court is required to make an access order pertaining to a child who is 13 years of age
or older and it appears necessary to the Court that it hear evidence from the child regarding his
relationship with the parties in the matter, the court shall adjourn the matter and hear the evidence of
the child in chambers.

9. Court to be satisfied

(1) Before making a maintenance order the court shall be satisfied that—

(a) a child for whose benefit the application is being made is entitled pursuant to this Act to
be maintained by the respondent;

(b) the respondent is able to maintain the child and has failed to fulfil that obligation; and

(c) the needs of the child will be adequately met.

(2) Before making an order for access to a child, the court shall be satisfied that the person in
whose favour the order is to be made is entitled to have access to the child and that access to the child
by that person would be in the best interest of the child.

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10. Powers of court

(1) A court may make any order in favour of a child for payment for services including but not
limited to the provision of—

(a) food;

(b) clothing;

(c) medical attention and medication;

(d) school attire;

(e) school fees;

(f) school texts;

(g) school stationery; and

(h) insurance benefits.

(2) A court may make any interim or final order requiring that—

(a) an amount be paid periodically whether for an indefinite or limited period, or until the
happening of a specified event;

(b) a lump sum be paid or held in trust;

(c) some or all of the money payable under the order be paid to an appropriate person or
agency for the child’s benefit;

(d) payment be made in respect of any period before the date of the order;

(e) any licence, permit or benefit enjoyed by a respondent be suspended until he satisfies the
requirements of the order of the court;

(f) payment of expenses in respect of a child’s birth and the prenatal care of the child’s
mother be made by the respondent;

(g) distress be levied upon the goods or chattels of the respondent for the satisfaction of a
maintenance order;

No. 1 of 2008.The Maintenance of and Access to Children Act, 2008. 12

(h) funds for the maintenance of the child be paid into an account held in the child’s name or
to a specific person;

(i) the respondent who has an interest in a pension plan or other benefit plan, designate the
child as beneficiary under the plan and not change that designation;

(j) payment under a maintenance order be secured by lien or charge on real or personal
property or otherwise; and

(k) any other order that the court thinks fit in the circumstances of the case.

(3) A court may vary an order in any manner that the court thinks fit, suspend that order, reviv a
suspended order or discharge an order.

(4) A maintenance order binds the estate of the respondent unless the order provides otherwise.

(5) Where the court has determined that a person is in default of a maintenance order and the court
makes a further order for the committal of that person or any further order in respect of that person,
the court shall forward a copy of that order to the Chief Immigration Officer.

(6) The court may, on application, make an interim or final order restraining the depletion of a
person’s property that would impair or defeat an order.

(7) When hearing an application for a maintenance order or for the variation of a maintenance
order, the court may order the employer of an applicant or the respondent to make a written return to
the court showing the person’s basic wage and the person’s emoluments during the preceding twelve
months.

(8) The court, upon hearing any application made pursuant to this Act, if satisfied that a person has
contravened section 3(2), may refer the matter to the DPP for prosecution.

(9) Where the issue of paternity of a child arises during the hearing of any application made
pursuant to this Act, the court may, after considering the evidence of the parties, make an order that
tests be made to confirm the paternity of the child and shall, where the tests so confirm, declare the
paternity of the child and make an appropriate order as to the maintenance of the child.

11. Mediation

(1) A court may refer any proceedings commenced pursuant to this Act to mediation.

(2) Parties may notify the court that they wish to have their matter referred to mediation and upon
receipt of this notification the court shall make an order referring the matter to mediation.

No. 1 of 2008. The Maintenance of and Access to Children Act, 2008.13

(3) Where an order is made pursuant to subsection (1) or (2) and the parties referred to mediation
reach an agreement, the mediator shall reduce the agreement into writing in the prescribed form and
the parties shall sign the agreement.

(4) Where an agreement has been concluded pursuant to subsection (3), the applicant shall file the
agreement with the court and within fourteen days of the date of filing the agreement, the court shall
fix a date for further hearing of the matter and make an order in terms of the agreement.

12. Maintenance Collection Account

(1) Unless otherwise ordered by the court, all funds to be paid pursuant to a maintenance order
shall be paid at the Magistrates Court—

(a) in cash;

(b) by a cashier’s cheque or by a bankers draft; or

(c) by standing order.

(2) All funds paid pursuant to a maintenance order shall be paid into a trust account to be known as
the Maintenance Collection Account, which shall be for the sole purpose of collecting and paying
those funds.

(3) On a date to be specified by the Minister all funds held pursuant to maintenance orders in the
Consolidated Fund or at the Magistrates Court prior to the commencement of this Act shall be depos-
ited into the Maintenance Collection Account.

13. Alternate payment methods

The court may make further orders as it thinks fit, specifying the manner in which funds are to be paid
for maintenance.

14. Contravention of access orders

(1) A person may make an application to the court for an order that a person who has contravened
an access order be committed for contravening that order.

(2) Where an application is made pursuant to subsection (1) the court shall issue a warrant ad-
dressed to the Commissioner and to all police officers, that the person who contravened the access
order be arrested and brought before the court to show cause why he should not be committed for
being in contravention of the order.

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(3) A person who is arrested pursuant to subsection (2) who cannot show cause to the satisfaction
of the court why he contravened the court’s order, is liable to be committed for a period of 6 weeks.

15. Contravention of maintenance orders

(1) A person may make an application to the court, on behalf of a child for whose benefit a main-
tenance order has been made, for an order that a person in default of the maintenance order be
committed for being in default of that order.

(2) Where an application is made pursuant to subsection (1) the court shall issue a warrant ad-
dressed to the Commissioner and to all police officers, that the person who contravened the mainte-
nance order be arrested and brought before the court to show cause why he should not be committed
for being in contravention of the order.

(3) A person who is arrested pursuant to subsection (2) who cannot show cause to the satisfaction
of the court why he contravened the court’s order, is liable to be committed for a period of 6 weeks.

16. Contravention of order

A person who is in default of or contravenes an order, commits an offence and is liable on summary
conviction to a fine of two thousand dollars or to be committed for a period of two years or to both.

17. Execution of warrants

(1) Where the court issues a warrant pursuant to sections 14 or 15, the court shall forward the
warrant to the Commissioner for execution.

(2) The Commissioner shall ensure, as far as possible, that a warrant issued pursuant to this section
is promptly served and executed in accordance with the directions of the court.

18. Attachment order

(1) The court may make an attachment order in respect of any pension or income that is capable of
being attached, directing the person paying the pension or income to periodically deduct a sum for
maintenance and to pay that sum into the Magistrates Court.

(2) An attachment order made pursuant to subsection (1) must contain a penal notice notifying the
person ordered to make the deduction and subsequent payment that he will be personally liable for
the payment if he fails to make the deduction in compliance with the attachment order.

(3) A person ordered to make payments pursuant to an attachment order shall notify the court of
any change of circumstance that affects the payment of any pension or income that is the subject of an
attachment order, within 14 clear days of that change.

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(4) If a person fails to notify the court in accordance with subsection (3), he is personally liable to
make the payments ordered pursuant to this section until he complies with subsection (3).

19. Application for order of attachment

A person may apply to the court for an attachment order in respect of the income of a person who is
in default of a maintenance order.

20. Duration of orders

(1) The court may order that a maintenance order remain in force—

(a) until the child attains the age of eighteen years;

(b) until the child has completed tertiary education;

(c) until the child reaches a specified age;

(d) for the period specified in the order; or

(e) where a child is unable to maintain himself by reason of illness or infirmity which is
likely to be permanent, for the rest of the natural life of that child.

(2) A maintenance order remains in force until it is satisfied, varied or revoked by the court.

(3) An access order remains in force until a child in respect of the whom the order is made attains
the age of eighteen years unless the court otherwise orders.

21. Arr ears during period of committal

Where a person is committed to prison for breach of a maintenance order, n arrears accrue under the
order during the time that the person is in prison, unless the court otherwise directs.

22. Summons for a person attempting to leave Antigua and Barbuda

(1) A court may issue a summons requiring a person to appear at a specified time, to show cause
why an order should not be made against him prohibiting him from leaving Anti ua and Barbuda
where the court is satisfied upon oath that there is reasonable ground for believing that the person is
about to leave Antigua and Barbuda without making adequate provision during his absence for the
maintenance of a child that lives in A tigua and Barbuda.

No. 1 of 2008.The Maintenance of and Access to Children Act, 2008. 16

(2) A court may issue a summons requiring a person who was attempting to remove a child from
Antigua and Barbuda to appear at a specified time, to show cause why an order should not be made
against him prohibiting him from leaving Antigua and Barbuda with the child, or prohibiting him
from having a child removed from Antigua and Barbuda, where the court is satisfied upon oath that
there is reasonable ground for believing that the person—

(a) is attempting to remove a child from Antigua and Barbuda to frustrate an order regarding
the access to or custody of that child;

(b) does not have the permission of both the parents of the child to remove the child from
Antigua and Barbuda, where the parents of the child share custody of the child; or

(c) does not have the permission of the parent who has custody of the child to remove the
child from Antigua and Barbuda, where that parent has sole custody of the child.

(3) For the purposes of subsections (1) and (2) a court may, either in the first instance or subse-
quent to the issue of a summons, issue a warrant addressed to the Commissioner and to all police
officers, to apprehend a person and cause him to be brought before the court within 24 hours of the
apprehension.

23. Power of the court to prohibit a person from leaving Antigua and Barbuda or from remov-
ing a child

(1) The court may order a person not to leave Antigua and Barbuda where on the appearance of the
person, the court is satisfied that the person is about to leave Antigua and Barbuda without having
made adequate provision for the maintenance of a child during his absence.

(2) The court may order a person not to remove a child from Antigua and Barbuda where on the
appearance of the person, the court is satisfied that the person is about to leave Antigua and Barbuda
with a child—

(a) in order to frustrate an order regarding access to the child;

(b) without the permission of both of the parents of the child where the parents of that child
share custody of the child; or

(c) without the permission of a parent who has custody of the child where that parent has sole
custody of the child.

(3) Before making an order to prohibit a person from removing a child from Antigua and Barbuda,
the court shall consider whether the child is being removed from Antigua and Barbuda for educa-
tional or medical purposes or for another good and sufficient reason.

No. 1 of 2008. The Maintenance of and Access to Children Act, 2008.17

24. Contravention of order

A person commits an offence and is liable on summary conviction to a fine of two thousand dollars or
to be imprisoned for a period of six months or both, if an order has been made against him under
section 23 and—

(a) he leaves or attempts to leave Antigua and Barbuda while the order is in force; or

(b) he removes or attempts to remove the child from Antigua and Barbuda while the order is
in force.

25. Power to arrest without warrant

(1) A police oficer may, where he is provided with sworn information, arrest without warrant and
shall on the next working day after the arrest, bring before a Magistrate, a person who—

(a) is in default of a maintenance order and who is attempting to leave Antigua and Barbuda;
or

(b) is attempting to remove a child from Antigua and Barbuda in contravention of a court
order.

(2) The Chief Immigration Officer or any Immigration Officer on duty at a port of entry may,
where he is provided with sworn information, arrest without warrant and shall within 24 hours of the
arrest place in the custody of the police, a person who—

(a) is in default of a maintenance order and who is attempting to leave Antigua and Barbuda;
or

(b) is attempting to remove a child from Antigua and Barbuda in contravention of a court
order.

(3) The Commissioner shall ensure that a person who has been placed in police custody in accor-
dance with subsection (2) is brought before a court on the next working day after being placed in
police custody.

26. Misapplying funds

(1) A person who has received funds for the maintenance of a child shall apply those funds for that
purpose.

(2)A person who contravenes subsection (1)—

No. 1 of 2008.The Maintenance of and Access to Children Act, 2008. 18

(a) commits an offence and is liable on summary conviction to a fine of one thousand dollars
or to a term of imprisonment of 6 weeks or both; and

(b) shall repay the misapplied funds.

27. High Court

Nothing in this Act prevents the High Court from—

(a) making a maintenance order or any other incidental order where any matter is being
considered by that Court that relates to the maintenance or welfare of a child; or

(b) making an interim or final order restraining the depletion of a person’s property that
would impair or defeat the operation of a maintenance order.

28. Regulations

The Minister may make Regulations to provide for—

(a) the opening and operation of the Maintenance Collection Account;

(b) the manner in which payments are to be made from the Maintenance Collection Ac ou t;

(c) the commencement of proceedings against persons in default of maintenance orders;

(d) the payment of funds from the Maintenance Collection Account;

(e) the application of interest earned from funds in the Maintenance Collection A c unt;

(f) the forms necessary for carrying into effect the provisions of this Act;

(g) the manner in which matters are to be—

(i) referred to mediation pursuant to this Act; and

(ii) conducted when referred to mediation pursuant to this Act; and

(h) the efective carrying out of the provisions of this Act.

29. Appointments by the Minister

(1)The Minister may by order appoint the Chief Welfare Oficer or any person he thinks fit to com-
mence any proceedings pursuant to this Act.

No. 1 of 2008. The Maintenance of and Access to Children Act, 2008.19

(2) A person appointed by the Minister under section (1) is not required to file the documents set
out at section 6 (3) (c), (d), (e) and (f).

(3) Where an applicant is a person appointed by the Minister under subsection (1), section 8 (1)
(d), (e), (f), (g) and (h) do not apply to the applicant.

30. Appeal

A person may appeal to the Court of Appeal against an order.

31. Repeal

(1) The Maintenance of Children Act, Cap. 256 is repealed.

(2) The Magistrate’s Code of Procedure Act, Cap. 255 is amended as follows—

(a) in section 121 by repealing paragraphs (4) (c), (d) and (e) and (7) (ii);

(b) by repealing section 123;

(c) by repealing section 126(1)(b) and (2); and

(d) by repealing sections 128, 131 and 134.

Passed by the Senate on this 21st day of
April, 2008.

H. Francis
President.

Yvonne Henry
Clerk to the Senate.

Passed by the House of Representatives on
this 8th day of April, 2008.

D. Gisele Isaac
Speaker.

Yvonne Henry
Clerk to the House of Representatives.

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