Case No. SE20C00603

9.Before I turn to that case law, I want to consider briefly some elementary propositions about the role and purpose of a court exercising civil jurisdiction and the effect, under the general civil law, of admissions when made.10.It is an ancient principle that where there is a right there must be a remedy: Ashby v White (1702) 2 Ld Raymond 938 per Holt CJ. Courts exist solely to determine whether a right exists and, if it does, and is proved, to provide the necessary remedy. 11.A court exists only to try real cases between real parties. It has no authority to advise parties what their rights would be under a hypothetical state of facts: Glasgow Navigation Company v Iron Ore Company [1910] AC 293, HL at 294 per Lord Loreburn LC, emphatically confirmed in Re X (Court of Protection Practice) [2015] EWCA Civ 599 by Gloster LJ at [113].12.A court awards a remedy exclusively for the benefit of the parties to the proceedings. At a final hearing it can do no more than to award, or to deny, a proper remedy to a claimant before it. In Scott v Scott [1912] P 241 at 273 Fletcher Moulton LJ (as he then was) said:“The same considerations apply to a defendant who is unsuccessful. The Court has the right and the duty to decree the proper relief against him, but it can do no more. It cannot add to that relief directions or commands as to his future conduct. If they are not part of the relief itself they are pronounced without authority. The conception of the Court interfering with litigants otherwise than by granting the relief which it is empowered and bound to grant is wholly vicious and strikes at the foundation of the status and duties of judges. We claim and obtain obedience and respect for our office because we are nothing other than the appointed agents for enforcing upon each individual the performance of his obligations.”13.Therefore, while a decision of a senior judge can amount to a binding precedent, its direct effect is confined to the parties to the proceedings. Obviously, in an incidental way, a decision of a judge can have an impact on non-parties, but the court has no authority to award relief against non-parties (save in defined exceptional circumstances), or, for that matter, to pronounce commands against a party which is not part of the relief properly awardable. It is a basic axiom that where a court takes it upon itself to exercise authority which it does not possess, its decision amounts to nothing and no party can in the least be bound by it: A-G v Lord Hotham (1827) 3 Russ 415 per Sir Thomas Plumer MR..14.It was submitted to me that a judgment in these proceedings might be helpful in a later application concerning a future, as yet unborn, child. The classic common law view, as propounded in Hollington v Hewthorn [1943] KB 587 by Lord Goddard CJ, is that factual findings made by judges in civil cases are inadmissible in subsequent proceedings between different parties. The rule was traditionally explained as being an instance of the proscription of hearsay evidence, such that it fell away with the passage of the Civil Evidence Act 1995. However, in Hoyle v Rogers & Anor [2014] EWCA Civ 257 Christopher Clarke LJ held at [39] that the rule survived. He reasoned that the rule existed because:“The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.”This reasoning forcefully reflects the general proposition that the role and purpose of a court is solely to determine on the evidence the dispute between the parties before it. It echoes the judgment of Sir William de Grey, Lord Chief Justice of the Common Pleas in the Duchess of Kingston's case [1775-1802] All ER Rep 623 (20 April 1776) where he stated:“What has been said at the Bar is certainly true as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment he might think erroneous. Therefore, the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers.”15.However, the rule in Hollington v Hewthorn has been held not to apply to inquisitorial proceedings where the court is obliged by statute to take all the circumstances of the case into account: Re H (A Minor) (Adoption: Non-Patrial) [1982] Fam 121. I therefore accept that a fact-finding judgment in public law children proceedings would not be technically inadmissible in later proceedings in relation to a different child. But when considering whether to order a fact-finding trial in respect of un-admitted allegations for possible use in later proceedings the court will surely have in mind the reasons why the common law has developed the public policy principle that such a judgment is generally inadmissible.16.The first proposition is therefore that the ulterior motive of bringing into existence a fact-finding judgment to use in proceedings about a future, as yet unborn, child wound be considered to be a misuse of the role and purpose of the court and arguably would be the exercise of an authority that the court does not possess.17.The second proposition is that where a claim has been made against a defendant, and where that defendant has admitted, in whole or in part, the truth of the claim, the claimant may then apply for judgment on the admission (see CPR r.14.1 for the procedure). If sufficient facts are admitted either to prove liability, or to prove a complete defence to liability, then the court will not normally allow further facts to be proved: Dublin Wicklow and Wexford Railway Company v Slattery (1878) 3 I. Cas. 1155 per Lord Cairns LC. It is only where the admitted facts are capable of two equally possible views that it would be appropriate for a fact-finder to decide between them and thereby to resolve the conflict: Davey v L & SW Ry (1883) 12 QBD 70 at 76, per Bowen LJ. Naturally, if the further facts would influence a later phase of the proceedings, such as damages, then the court will allow those facts to be proved, in that phase, for that purpose.18.In my opinion these general common law propositions should be kept well in mind when the family court is considering whether to permit a trial of further, technically superfluous, facts.