Case No. SE20C00603

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.The family law authorities19.The family law authorities on the exercise of the court’s discretionary power to permit such a trial are in some respects contradictory. 20.I cite first Re G (A Minor) (Care Order: Threshold Conditions) [1995] Fam 16, where Wall J held that on an application for a care order the court had to be satisfied by evidence that the significant harm suffered by the child was attributable to the care, or absence of care, given to the child by the parent against whom the order was sought, and no agreement between the parties could deprive the court of that duty to be so satisfied; and that where there was a disagreement as to the factual grounds for the making of a care order it was not an appropriate exercise of the court's power to take the lowest common denominator as the basis for an order. He stated:“Furthermore, whilst as a matter of strict law I am only concerned with L., I do not think I can properly shut my eyes to the fact that the father has other children, including a baby born on 5 May 1993. I am not, of course, making any decision other than that under section 31 in relation to L. I am, however, in my judgment, entitled to take into account, in deciding whether or not to make findings of fact in relation to L., the possibility that the father may seek to use the absence of findings in relation to L. as a means to advance his case in other proceedings.”21.In contrast, in Stockport Metropolitan Borough Council v D [1995] 1 FLR 873 Thorpe J was clear that the scope and purpose of the proceedings did not extend to protecting other children, let alone unborn children. He stated: “[T]he purposes and scope of the present proceedings are to settle the future of a single child. To do that by order at the conclusion without full trial of the Children Act proceedings, the duties of the court in relation to that child are contained within the Children Act 1989 and are specific both in relation to the threshold criteria and the pursuit of the welfare principle as paramount. The court has no definable statutory duty in relation to children as yet unborn. It has no function to grant a declaratory judgment.” Re G was not cited to Thorpe J. Nonetheless, it can be seen that Thorpe J was faithful to the traditional conception of the role and purpose of a court.22.Thorpe J went on to state:“Such understandable concern as the local authority has in relation to the possibility of fresh litigation of issues presented in these proceedings in relation to possible children as yet unborn, has to be set against what seems to me to be the enormous benefits of conclusion of contested proceedings by compromise. The over-complication of the procedures for conclusion by compromise risks the loss of that essential benefit in what may be a very finely balanced and complex situation. If there is a concession that the essential orders should be written either by consent or unopposed, if there is a formal concession of the passage of the s 31 threshold, if that concession is based on specific admissions of abuse or neglect, if the court is satisfied that the order and its foundations are proved, it seems to me quite contrary to public interest that the proceedings should be prolonged simply to resolve nice differences as to the expression of the essential concessions.The emotional and psychological cost to parents in accepting advice that leads to the conclusion of the case without a hearing is considerable. Some regard has to be paid to their self-esteem and some regard has to be paid to the pace at which the acceptance of responsibility for abuse or neglect of children evolves. If the court has a function, once formal admissions have been made that pass the s. 31 threshold and that extend to the recognition that neither parent can safely be entrusted with the care of any child, then my conclusion is that the court should accept the terminology of those who proffer the formal admissions rather than the terminology of those who seek the orders.Accordingly, I have accepted the formal admissions made by Mr Foster and Miss Hindley on behalf of their respective clients. I have declined the invitation of Miss Swift, and to some extent Mr Townend, that despite those formal admissions the court should exercise its discretion to investigate further and make pronouncements on evidence.”23.In Re B (threshold criteria: agreed facts) [1998] 2 FLR 968, [1999] 2 FCR 328 Thorpe LJ, sitting in the Court of Appeal, expressly confirmed and endorsed all that he had said in Stockport Metropolitan Borough Council v D. In Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728, CA, the correctness of those decisions was not doubted. One would have thought, therefore, that the limited scope of the discretion to permit a fact-finding hearing of un-admitted allegations would have been, by these original authorities, fixed with certainty. Explicitly, the original authorities hold that the potential utility of the judgment in later proceedings involving a different child is not a legitimate purpose of such a hearing (I shall call this “the different child” purpose or factor). The original authorities do not mention as a legitimate purpose the advantage of having such a judgment so that the child may in adulthood know the whole truth about his adoption (“the whole truth” purpose or factor). Nor do the original authorities mention as a legitimate purpose that having such a judgment may be a useful platform for identifying a perpetrator of domestic abuse (“the perpetrator identification” purpose or factor). One can be sure that if Thorpe LJ considered these latter two factors to be legitimate purposes he would have said so. 24.The reason that the original authorities explicitly reject the different child factor, and tacitly reject the whole truth and perpetrator identification factors is because, in the words of Thorpe J, “the purposes and scope of the present proceedings are to settle the future of a single child”. In a case such as this, that purpose is achieved by the court performing its statutory duty under s.31 of the Children Act 1989 and s.21 of the Adoption and Children Act 2002 and making care and placement orders. Those are the over-arching objectives of the proceedings, no more, no less. It is not the role, function or purpose of the court to do anything more than this.25.Naturally, a judgment from a standard fact-finding trial (where there were no, or insufficient, admissions of the threshold allegations) may have the consequence of satisfying one or more of these three purposes. So, in a future case about another child such a standard judgment may be admitted in evidence and have some influence on the result. Or it may be helpful in compiling a life-story book for the subject child. Or it may be shared with another local authority to put it on alert to the presence of a child abuser in its domain. But on an application for a fact-finding trial of un-admitted allegations where the admitted allegations amply satisfy the threshold, these possible side-effects cannot legitimately be put forward as the main purposes of such a trial. To do so would be to put the cart of useful side-effects before the horse of legitimate purposes. 26.In Oxfordshire County Council v DP & Ors [2005] EWHC 1593 (Fam) McFarlane J, as he then was, at [24] stated:“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:a) The interests of the child (which are relevant but not paramount);b) The time that the investigation will take;c) The likely cost to public funds;d) The evidential result;e) The necessity or otherwise of the investigation;f) The relevance of the potential result of the investigation to the future care plans for the child;g) The impact of any fact finding process upon the other parties;h) The prospects of a fair trial on the issue;i) The justice of the case.”27.Rightly, having regard to the original authorities, McFarlane J did not include as a relevant factor the different child purpose. However, in [29(iv)] he stated:“The public interest in the identification of the perpetrators of child abuse and the public interest in children knowing the truth about past abuse are important factors”I have pointed out above that neither of these factors was mentioned in the original authorities.28.In Re H-D-H and C (Children: Fact-Finding) [2021] EWCA Civ 1192, [2021] 4 WLR 106 the Court of Appeal considered the subject anew. Unfortunately, neither Stockport Metropolitan Borough Council v D nor Re B (threshold criteria: agreed facts) was cited to it. Peter Jackson LJ held at [21]:“Many of the factors identified in Oxfordshire overlap with each other and the weight to be given to them will vary from case to case. Clearly, the necessity or otherwise of the investigation will always be a key issue, particularly in current circumstances. Every fact-finding hearing must produce something of importance for the welfare decision. But the shorthand of necessity does not translate into an obligation to conclude every case as quickly as possible, regardless of other factors, and that is clearly not the intention of the administrative guidance. There will be cases in which the welfare outcome for the child is not confined to the resulting order. Not infrequently, a finding in relation to one child will have implications for the welfare of other children. Sometimes, findings that cross the threshold at a minimum level will not reflect the reality. The court's broad obligation is to deal with the case justly, having regard to the welfare issues involved.”And at [22(iv)]:“The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.”(Emphases added)29.Accordingly, Ms Heaton QC argues in her position statement: “Her vacillation requires the court to hear the evidence and, if it can without straining to do so, make findings in respect of the central issues in this case so that [IW] will come to understand why he is unable to live with his mother.” and“It is also reasonably foreseeable that mother may have another child and that the same issues would surface again. At this point when the evidence is available and poised to be determined it is far better, and cost and time effective, to undertake that exercise now than at a later point possibly a year or so ahead.”It can be seen that Ms Heaton QC suggests that having findings on the different child and whole truth factors should be the main (or even perhaps only) purpose of the proposed fact-finding. 30.This places me as a first instance Judge in a position of some difficulty. The previous binding authority of the Court of Appeal in Re B made it absolutely clear that when making a decision whether to allow a fact-finding trial in relation to un-admitted allegations there was no room for the different child factor. Nor was there any place for the perpetrator identification or the whole truth factors. Yet, in this latest decision of the Court of Appeal these are all cited as being potential purposes for a fact-finding trial of un-admitted allegations.31.Mr Garrido QC argues that I should consider myself bound by the earlier decision of the Court of Appeal and should not follow what he submits is an erroneous expansion of the potentially relevant purposes by this later decision of the Court of Appeal.32.I agree with Mr Garrido QC. 33.In my judgment, the list at [24] of Oxfordshire should be regarded as definitive. It should be applied without bringing into consideration the different child factor (which is in fact not mentioned in [24]). 34.In my opinion, if a judge has to consider an application such as this and stays strictly within the four corners of the list at [24] of Oxfordshire then she is unlikely to go wrong. 35.I find Peter Jackson LJ’s checklist in [22] of Re H-D-H to be helpful, provided it is understood, having regard to the original (binding) authorities, that the relevant purposes will not include under para (i) of that checklist the whole truth factor and under para (iv) the different child and perpetrator identification factors.36.The checklist omits the key consideration of necessity (which was item (e) in McFarlane J’s original list) because Peter Jackson LJ had dealt with this aspect earlier in his para [21].37.I would therefore re-express the checklist as follows, with my amendments (and the reinsertion of the criterion of necessity)