When the actress Olivia Wilde was recently served with child custody papers whilst on stage it caused something of a sensation. Surely, said many, she should not have been served publicly, whilst she was working?
The custody papers (in America they still use the word 'custody') had been issued by Ms Wilde's former fiancé, actor Jason Sudeikis, with whom she has two children.
The papers were served upon Ms Wilde in Las Vegas whilst she was on stage discussing a forthcoming film. We cannot comment upon whether the service was in accordance with the applicable local law, but would it have been in accordance with the law in England and Wales?
Why personal service?
Starting with the basics, whenever someone issues an application to a court the other party (the 'respondent') must be informed of the proceedings, and provided with a copy of the court papers (i.e. the application and any notification of the first hearing date). This is done by serving the papers upon them.
The court will not allow the proceedings to continue until it is satisfied that the respondent has been served with the papers, as obviously the respondent has a right to be heard in the proceedings.
Service of family court papers is normally effected by sending the papers to the respondent's solicitor, if they have one, or by sending them to the respondent's address. Personally serving the papers by having a process server hand them to the respondent, as happened to Olivia Wilde, is not normally necessary, save in two particular situations.
The first situation is where the papers include a domestic abuse injunction order. Such an order should normally be personally served upon the respondent, to ensure that the respondent has actually received it, and that the order is therefore effective.
Obviously, this does not apply to an application for a child arrangements order, which is what we would call a custody application in this country.
The second situation, however, could apply to an application for a child arrangements order. It is where the application has been sent to the respondent, but they have not acknowledged receipt, so it can't be proved that they have actually received the papers. Here, the court might want the papers to be personally served upon the respondent, to ensure that they have received them.
What the rules say about personal service
The rules on personal service are quite simple. They say that unless personal service is specifically required (for example because the court has ordered it), then the papers may be served personally, except where the respondent has a solicitor acting for them, in which case the papers should be sent to the solicitor.
As to how personal service should be effected, the rules simply state: "A document is served personally on an individual by leaving it with that individual."
The rules do not say anything about where personal service may take place. Accordingly, there would appear to be no 'legal' reason why a child arrangements application could not be served in similar circumstances to Ms Wilde, in this country.
Appropriate to serve?
But that is not to say that it would be appropriate to serve an application in such circumstances.
Serving someone publicly where they are working with private court papers, especially papers relating to children, certainly doesn't seem fair or appropriate, unless there is no other way.
Even in the Wilde case it would seem that Mr Sudeikis accepts that it was not appropriate, as it has been reported that he "had no prior knowledge of the time or place that the envelope would have been delivered as this would solely be up to the process service company involved", and that "he would never condone her being served in such an inappropriate manner".
And it almost certainly wouldn't be considered to be appropriate by a court in this country, unless it was done as a last resort, being the only method of service available, for example where the respondent was evading service.
Having said that, it is not clear exactly how the court might express its disapproval of such service, other than a judicial reprimand.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.