E (A Child), Re

Lord Justice Ward:

This is a case about contact taking place with regard to a young boy, who is six or thereabouts, against a background of allegations of domestic violence having been perpetrated by the father against the mother.

As is common form in these cases, the district judge made an order on 1 July that:

“1. A fact finding hearing be listed before the Circuit Judge at Colchester County Court Norfolk House 23 Southway Colchester Essex at 10:30am on Friday 31st October 2008, to adjudicate:

(i) the allegations of domestic violence made by the Respondent Mother

(ii) whether the nature and effect of such allegations, if proved, are such that the decision of the court on the issue of contact is likely to be affected”

The district judge gave the directions for the filing of the evidence and recorded that the court would or may also be asked to determine interim contact at that adjourned hearing.

The mother duly filed her evidence and set out her schedule of allegations of violent behaviour in a Scott schedule to which the father responded.

That hearing was conducted by HHJ Dedman in the Colchester County Court on 19 January. The hearing apparently lasted all day and the judge reserved his judgment which he then handed down on 5 February 2009. In that judgment he set out the complaints made by the mother against the father. They were, in essence, and I need not set out the detail: that there was physical violence, particularly by way of his stamping on her feet which resulted in her breaking bones in her foot, and also forcing himself upon her to have sexual intercourse when she was unwilling to do so; once, it was alleged, in the presence of the then four year old child.

The judge set out his findings in a way in respect of which there is no serious complaint, and, having accepted the evidence of the mother in preference to the father, came to the following conclusions as set out in paragraphs 34 and onwards of his judgment. In paragraph 34 he said:

“In these circumstances I found the complaints which she made against the Father were proved and in my judgment they were of such a serious nature as to impact very substantially on the question of contact between the Father and [C, the child] who I think would have been the subject of serious emotional trauma in the course of and as a result of his parents’ failing relationship certainly if as I have found there was sexual violence in his presence.”

Then the judge went on in the following paragra