Service of Proceedings on Respondent in Wards of Court Proceedings

Mental Health Law and Capacity Law 17/02/2022

The Chair of the Law Society Task Mental Health Law and Capacity Task Force, Ms 脕ine Hynes SC, wishes to bring practitioners鈥 attention to an important change to the service procedures in wardship proceedings. Ms Hynes SC advises that if service is not completed in accordance with the new rules 94 and 95 of Order 67 of the Superior Court Rules, a declaration hearing will not proceed.

The rules of the superior courts have been amended recently by S.I. No. 600/2021 鈥 Rules of the Superior Courts (Service in Wardship Proceedings) 2021, which came into effect on 17 November 2021.

S.I. No. 600/2021 substitutes rules 94 and 95 of Order 67.  While rule 94 (1) provided for personal service on a respondent, rule 94(2) provided that where personal service would be impracticable or inexpedient, for example, by reason of the respondent鈥檚 physical or mental condition or 鈥渢he other circumstances of the case鈥, then service could have been effected by delivering the notice to the person in charge of the institution the person resided in. This rule also permitted service on a person at the ward鈥檚 dwelling house or usual or last known place of abode.

The new rule 94(2) does not permit substituted service unless the Judge otherwise directs.

The new rule 94 (1) specifies that the person serving such notice shall, at the same time, read to the respondent the contents of the petition served on him or her and explain its nature and implications.

The amended rule 95 provides that an averment must be included in an affidavit of service, in respect of the efforts made by the deponent to explain the nature and implications of the papers served on the respondent and set out any response of the respondent. Such affidavit shall be in the Form No 15.

Form No 15 has been amended to include the averment that the server read the contents of the petition and explained the nature and implications of the application to the respondent and to also note the response of the respondent.

The attested petition and an affidavit of service should then be filed in the Office of the Wards of Court. If the affidavit of service is not completed in compliance with the new rule, the matter will not proceed unless evidence can be adduced immediately as to service and the respondent鈥檚 responses to the service of the Notice of Originating Petition/Notice of Inquiry.