Communicated on 29 September 2014

FOURTH SECTION

Application no. 32407/13 Kacper NOWAKOWSKI against Poland lodged on 10 May 2013

STATEMENT OF FACTS

The applicant, Mr Kacper Nowakowski , is a Polish national, who was born in 1976 and lives in Bia Å‚ ystok . He is represented before the Court by Ms B. Skalimowska , a lawyer practising in Bia Å‚ ystok .

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background facts

The applicant is deaf and mute. He uses sign language.

The applicant and A.N. married on 20 August 2005. A.N. suffered from hearing impairment and had a hearing implant fitted . She communicates verbally and uses sign language.

The son (S.N.) of the applicant and A.N. was born on 10 December 2006. He also suffered from hearing impairment. In February 2007 the applicant and his wife separated. On an unspecified date in 2007 A.N. filed a petition for divorce.

On 15 November 2007 the Białystok Regional Court granted a decree of divorce. The court ruled that parental authority should be exercised by both parents and that the child should reside with the mother. It also ruled that the applicant had a right to see his son on the first three Fridays of each month from 4 p.m. to 6 p.m. and on every fourth Sunday of each month from 11 a.m. to 1 p.m. Contacts should take place at the mother ’ s home in her discreet presence and to the exclusion of third parties. The applicant was further ordered to pay child maintenance.

It appears that none of the parties appealed against the judgment which consequently became final on 6 December 2007.

2. P roceedings concerning change in contact arrangements

In August 2011 the applicant filed an application for change of his contact arrangements with the Białystok District Court. He requested the court to be allowed to have contact with his son on every second and fourth weekend of each month from 3 p.m. on Friday to 6 p.m. on Sunday away from the mother ’ s home. He also requested to see his son for some time during Christmas and Easter and to spend with him a half of the winter and of the summer school holidays. The applicant argued that the child had already reached the age of five and needed increased contact with his father in order to strengthen their ties.

The applicant admitted that after the divorce he had not seen his son for one year on account of his health problems. He claimed that his son was happy to spend time together and to play with him . The applicant asserted that he was able to provide appropriate care to his son and in case of need he could count on the support of his family. It was the mother who obstructed his contact with S.N. and made the atmosphere unfriendly. For example, she refused to translate verbal communication from their son to the applicant. The mother did not inform him about important decisions concerning the child and tried to marginalise him.

The mother claimed that the applicant had remained passive during his meeting with S.N. and that she had not obstructed the meetings. In her view, S.N. did not have emotional ties with his father and did not need contact with him. Further, the applicant would be unable to properly care for S.N. The mother lived together with her parents and her son.

The court established that the parents of S.N. remained in conflict and could not reach an agreement regarding the child ’ s contact with the father. The child has attended a nursery school since September 2009 with an integration unit where he remained under the supervision of a deaf education specialist, a speech therapist and a psychologist. He suffered from a hearing impairment and used a hearing aid. He required specialised medical care and followed a rehabilitation programme.

On 30 April 2012 the Białystok Family Consultation Centre ( Rodzinny O ś rodek Diagnostyczno-Konsultacyjny – “RODK”) issued an opinion commissioned by the court. It had been prepared by a psychologist, an education specialist and a psychiatrist who met the parents and the child and were assisted by an interpreter of sign language. The experts stated that emotional ties between the mother and the child were strong with a tendency of the mother to be overprotective. The child ’ s ties with the father were superficial and weak. The child identified the applicant as the father but did not include him in his family. The father ’ s ties with the child were positive but founded on limited experience and high expectations. These ties were also affected by the communication difficulties between them. The experts further noted that the conflict between the parents impeded their cooperation with regard to the child. They suggested that the parents be consulted by a specialist with a view to teaching them how to accept each other as a parent.

The experts opined that the increasing of contact as requested by the applicant was not advisable due to a limited communication between him and the child, the child ’ s age and history as well as the strength of his ties with the mother and maternal grandparents. They recommended, however, that the contact should also take place outside the mother ’ s home (playground, walks) and in her presence. The mother should cooperate with the father and support him in making the contact with the child more diverse. The experts noted that the ability of the applicant to care independently for his son was considerably limited. In their view, the interest of the child required that the parents cooperate with each other despite communication problems. The experience so far demonstrated that the mother should be more proactive in this regard and the father should not contest the mother ’ s decisions concerning the child.

The applicant contested the experts ’ findings and alleged that it should have been prepared with the assistance of a deaf education specialist and a psychologist of deafness. He claimed that their finding that the contact could not take place without the mother on account of the applicant ’ s disability amounted to discrimination. The experts also disregarded the possibility of rendering assistance by the paternal grandmother and of ordering the parents to undergo a family therapy.

The District Court heard evidence from the RODK experts. The psychologist G.H. admitted that the RODK did not have specialised methods of examining deaf persons but this was not necessary in respect of the advisability of maintaining contact. She added that the main obstacle in contact was the conflict between the parents and the lack of their cooperation. The court dismissed the applicant ’ s request for a supplementary expert opinion since the earlier opinion was complete.

The court heard also the parties and witnesses (family members). It further took into account the information submitted by a court guardian following his visits to the applicant ’ s and the mother ’ s respective homes and relevant documentary evidence.

On 9 August 2012 the Białystok District Court dismissed the applicant ’ s application for change of the contact arrangements.

Having regard to all the evidence, and in particular the expert opinion, the court found that the requested change of contact arrangements would not be in the child ’ s interest. It was true that the first decision in respect of contact had been given 5 years ago when S.N. was a baby and when the presence of his mother during contact had been justified by the child ’ s age. However, the age of the child was not the only element to consider. Other relevant elements were the specificity of the child development, his state of health, his disability, the need for his permanent medical rehabilitation and his strong dependence on the mother and maternal grandparents. The court found that these elements still justified the contact arrangements in a discreet presence of the mother and at her home. It noted that the requested change of contact arrangements would be too far-reaching. It observed that except for the first two months of the child ’ s life the applicant had not lived with him or cared for him. The applicant admitted that he had not always come to scheduled visits. Sometimes the reasons for this were beyond his control (health problems or his evening school commitments) and sometimes the contact was obstructed by the mother. However, in consequence his limited and irregular involvement in the child ’ s life had influenced the emotional ties between the father and the son.

The court also found that it could not disregard the communication problems between the applicant and his son. It did not agree with the applicant that this was a discriminatory measure against him, but an objective and independent reason which hampered his communication with the child. The applicant, despite his and his son ’ s disability, had an incontestable right to contact with his son. However, this circumstance should be taken into account in regulating the contact arrangements so they would remain most favourable to the child. The court noted that the applicant used mostly sign language (and articulated a few single words), while the child communicated only verbally and so it was natural that difficulties in their communication would arise. For this reason it was still justified that the mother who used sign language and verbal communication be present during the applicant ’ s visits. The mother ’ s presence, which provided the sense of security to the child, could also facilitate his more relaxed behaviour during his meetings with the father. The court disagreed with the applicant that the paternal grandmother would ensure proper communication between him and his son. The issue was not only about interpreting from sign language to verbal communication but also about ensuring the security and stability which could only be provided by the mother. The applicant ’ s son did not know well his paternal grandmother and so her presence would not compensate for the absence of his mother.

The court underlined that the applicant ’ s contact with his son should first and foremost ensure the security and stability for the child. The stress to which he were to be exposed in case of the change of his current environment and the absence of persons with whom he usually spend his time would certainly jeopardise the child ’ s well-being and damage his sense of security. The court dismissed the applicant ’ s argument that the child spent most of his day in a nursery school, i.e. outside his home and without the mother and so he could have easily stayed at the father ’ s home. It noted that the mother had been preparing the son for a nursery school over a long period of time and at first attended the school with him for short periods of time so he could become familiar with the place. The short unsupervised visits of the child to the good neighbour of the mother ’ s family did not support the applicant ’ s argument either.

Lastly, the court did not consider it necessary to impose an obligation on the parents to undergo a family therapy. It noted that the experts had opined that both parents required contact with a specialist who would assist them in mutually accepting each other as a parent. However, the only suitable place for such a therapy for persons with impaired hearing was a foundation attached to the nursery school attended by the child. The mother stated that she already attended a parent support group there and the applicant declared that he could do the same. In these circumstances, the court found that there was no need for its intervention.

The applicant appealed. He argued that the District Court failed to respect the principle of non-discrimination of deaf and mute persons by dismissing his application for unsupe rvised contact with his son. He invoked Article 2 of the Treaty on European Union in conjunction with Article 4 § 1 of the Convention on the Rights of Persons with Disabilities. The applicant further argued that the lower court erred in holding that the child ’ s interest did not justify the change of contact arrangements . It transpired from the expert opinion that the presence of the mother during contact created tensions between the parents and that this was unfavourable to the child. In addition, according to some witnesses the contact took place in the presence of third parties.

The applicant contested the lower court ’ s findings that the child ’ s paternal grandmother was a stranger to him and the child would be exposed to a stress in case of contact without the mother ’ s presence and outside her home whereas the child attended the nursery school and was cared by a neighbour a few times a week. Lastly, the applicant contested the refusal to obtain a supplementary expert opinion.

On 23 November 2012 the Białystok Regional Court dismissed the applicant ’ s appeal. It found that the lower ’ s court assessment of the evidence was correct and that the refusal to obtain a supplementary expert opinion was justified.

The Regional Court noted that the contact arrangements could be amended if the interest of the child so required (Article 113 5 of the Family Code). It concurred with the lower court that there was no justification for the change of the existing arrangements since the applicant ’ s contact with his son was frequent and if regularly used would enable the parties to strengthen their ties. The findings of the RODK experts clearly supported the same conclusion that no change was necessary. The Regional Court also agreed that the existing conflict between the parents would have certainly prevented the applicant from benefitting from an increased contact.

It further underlined that the presence of the mother during visits was necessary in order to ensure the child ’ s sense of security since the mother was a leading parent with strong ties to the child. The paternal grandmother could not provide the same. In addition, the mother ’ s presence would solve the problem of communication between the applicant and the child. The Regional Court did not agree with the applicant that the taking into account the issue of communication barrier by the lower court had amounted to his discrimination. The communication barrier was a real obstacle in the forging of ties between the applicant and his son and it could not be disregarded in the case where the interest of the child was a primary consideration, overriding particular interests of the parents.

3. Proceedings concerning parental authority

In July 2011 A.N. made an application to the Białystok District Court for an order restricting the applicant ’ s parental authority over S.N. She submitted that the applicant had refused to give his consent to issue an identity document for the child.

In October 2001 the applicant made a counter application, seeking an order to compel A.N. to undergo a family therapy. He argued that the mother acted to the child ’ s detriment by refusing to cooperate with the applicant in the matters concerning the child. She also humiliated and insulted the applicant in the child ’ s presence and undermined his authority.

On 2 August 2012 the Białystok District Court restricted the applicant ’ s parental authority over S.N. to the issu es concerning his education. It dismissed the applicant ’ s counter application.

The court relied on the opinion prepared by the experts of the Białystok Family Consultation Centre (“RODK”) . The experts concluded that the joint exercise of the parental authority was practically impossible. The reason for this was a permanent conflict between the parents, communication difficulties and the involvement of their respective families. The experts recommended that both parents should benefit from therapy with a view to developing their parental competencies.

Having regard to the evidence, the court found that it was justified to restrict the applicant ’ s parental authority and limit it only to the matters concerning the child ’ s education. Its decision was motivated by the lack of agreement between the parents in respect of the exercise of the parental authority. The applicant was not to be blamed solely for this situation. Furthermore, the communication with the applicant was limited due to his disability; however, the mother was aware of this fact since the beginning of their relationship. The court took further into account the fact that the child was raised by the mother, the parents lived separately and that there was a communication barrier between the applicant and the child. This was of importance in respect of matters concerning the child ’ s health.

With regard to the applicant ’ s request to impose an obligation on the mother to undergo a family therapy, the court did not find it justified. It was established that the mother had alone taken important decisions concerning the child of which she did not inform the applicant and that she was overprotective. Nonetheless, the court found that she properly exercised her parental authority.

The applicant appealed. On 23 November 2012 the Białystok Regional Court dismissed his appeal.

COMPLAINTS

1. The applicant alleges that he was discriminated against on the ground of his disability in breach of Article 8 taken in conjunction with Article 14 of the Convention. He complains that the courts dismissed his application for increasing contact with his son solely on the ground of his disability. They referred to the fact that there was a communication barrier between the applicant and his son which justified maintaining restrictions on contact between them. The applicant was treated differently than, other able-bodied fathers. The applicant also complains that the court offered no assistance to him and to his son to facilitate their contact. The applicant wishes to have unsupervised contact with his son and claims to be perfectly capable of taking care of his six years old son and of communicating with him. In case of need he could be assisted by his mother who uses sign language. In his view, the courts should grant him more contact with his son so they could strengthen their emotional ties.

2. The applicant, referring to decisions regarding his parental authority and contact, complains under Article 8 of the Convention about a breach of his right to respect for his family life. With regard to contact, the applicant claims that there was no evidence that an unsupervised contact would be contrary to the child ’ s best interest. The court remained indifferent to the mother ’ s hostility to him which went against the child ’ s interest. In the applicant ’ s situation, the courts should compel the mother to participate in a family therapy so to make her sensitive to the importance of proper contact between a father and a son (Article 113 4 of the Family Code). The applicant argued that the limited contact arrangements and the passage of time will result in the further distancing of his son. He also invoked Article 9 § 3 of the Convention on the Rights of the Child.

QUESTIONS TO THE PARTIES

1 . Has there been a violation of the applicant ’ s right to respect for his f amily life, contrary to Article 8 of the Convention? Have the authorities taken sufficient measures promoting a family tie between the applicant and his son (cf. Gnahoré v. France , no. 40031/98, § 51 , ECHR 2000 ‑ IX )?

2 . Has the applicant suffered discrimination on the ground of his disability , contrary to Article 14 of the Convention read in conjunction with Article 8 (cf. Glor v. Switzerland , no. 13444/04, ECHR 2009) ?