When actress Olivia Wilde was recently served custody papers on stage, it caused quite a stir. Surely, many said, she shouldn’t have been served publicly while she worked?
The custody papers (the word ‘custody’ is still used in America) were issued by Ms Wilde’s former fiancé, actor Jason Sudeikis, with whom she has two children.
The papers were delivered to Ms. Wilde in Las Vegas while she was onstage discussing an upcoming film. We cannot comment on whether the service was in accordance with applicable local law, but would it have been in accordance with law in England and Wales?
Why personal service?
Starting with the basics, whenever someone makes an application to a court, the other party (the “respondent”) must be informed of the proceeding and provided with a copy of the court records (ie the application and any notice of the first hearing date). ). This is done by delivering the papers to them.
The court will not allow the proceedings to proceed until it is satisfied that the documents have been served on the defendant, since the defendant clearly has a right to be heard in the proceedings.
Service of family court documents is normally accomplished by service of the documents on the defendant’s counsel, if any, or by mailing them to the defendant’s address. Personal service of documents by a bailiff, as was the case with Olivia Wilde, is not normally required, except in two special situations.
The first situation is when the papers contain a domestic violence restraining order. Such an order should normally be served on the defendant personally to ensure that the defendant has actually received it and that the order is therefore effective.
Of course, this does not apply to an application for the order of childcare, which we would call an application for custody in this country.
However, the second situation could apply to an application for the order of a child scheme. The application was sent to the respondent there, but he did not confirm receipt, so it cannot be proven that he actually received the documents. Here the court may require that the documents be personally served on the defendant to ensure that he has received them.
What the rules say about personal service
The rules of personal service are quite simple. They say that the documents can be served in person unless service in person is specifically required (e.g. because the court has ordered it to be so), unless the defendant has counsel acting on his behalf. In this case, the documents should be sent to the lawyer.
As for personal service, the rules simply state: “A document is served on a person personally by leaving it with that person.”
The rules say nothing about where in-person services may take place. Accordingly, there appears to be no “legal” reason why an application for a child scheme could not be served in this country in circumstances similar to Ms. Wilde’s.
Suitable for serving?
This does not mean, however, that it would be appropriate to make an application in such circumstances.
Serving someone publicly where they are dealing with private court records, especially papers involving children, certainly does not seem fair or appropriate unless there is no other way.
Even in the Wilde case, Mr Sudeikis seems to accept that this was not appropriate, as it was reported that he “had no prior knowledge of the time or place the envelope would have been delivered, as that would depend solely on who was involved.” process services company” and that “he would never condone her being served inappropriately in this way”.
And it would almost certainly not be considered appropriate by a court in this country unless done as a last resort, since it would be the only method of service available, for example if the defendant evades service.
However, it is not clear how the court could express its disapproval of such service other than by a court order.
The content of this article is intended to provide a general guide to the topic. Professional advice should be sought in relation to your specific circumstances.