Information Note on the Court’s case-law 203

January 2017

Kacper Nowakowski v. Poland - 32407/13

Judgment 10.1.2017 [Section IV]

Article 8

Positive obligations

Article 8-1

Respect for family life

Failure to take appropriate steps to facilitate contact of deaf and mute father with his son: violation

Facts – The applicant, who was deaf and mute, married a woman who also had a hearing impairment. The couple had a so n in 2006. They divorced in 2007 and the domestic courts ruled that the boy was to reside with his mother and that the applicant would be allowed to see him two hours a week.

However, in 2011, when his son was almost five, the applicant applied to the cou rts for an extension of his contact rights in order to strengthen their ties. His request was refused on the grounds that it would not be in his son’s best interests owing to the child’s own disability and heavy dependence on his mother, and the need to in volve the mother in contact visits, as she was able to use sign language and communicate orally, whereas the father mostly used sign language and the son only communicated orally.

In the Convention proceedings the applicant complained inter alia under Art icle 8 that the dismissal of his application for an extension of contact with his son had infringed his right to respect for his family life.

Law – Article 8: The decisive question was whether the national authorities had taken all appropriate steps that c ould reasonably have been demanded to facilitate contact between the applicant and his son.

In its assessment of the reasons advanced by the domestic courts for refusing to extend contact the Court had to pay due regard to two specific features of the present case, namely (i) the serious conflict between the parents, and (ii) the respective disab ilities of the applicant and his son.

As to the conflict between the parents, the Court accepted that the task of the domestic courts had been rendered difficult by the strained relationship between the applicant and the child’s mother. However, a lack of cooperation between separated parents was not a circumstance which could, in and of itself, exempt the authorities from their positive obligations under Article 8. Rather, it imposed on the authorities an obligation to take measures to reconcile the confli cting interests of the parties, keeping in mind the paramount interests. In this context the Court noted that (i) the domestic courts had decided not to impose an obligation on the parents to undergo family therapy despite the recommendations made by the e xperts for specialist counselling, (ii) the domestic legislation contained no provision for mediation in family-law cases, and (iii) the domestic courts had not properly examined the possibility of resorting to the range of existing legal instruments which could have facilitated the broadening of contact.

As regards the disabilities of father and son, the applicant had an incontestable right to contact with his son and the communication issue should have been taken into account. The domestic courts’ solutio n had been to involve the child’s mother in the contact arrangements (since she was able to communicate both orally and in sign language) but that ignored the existing animosity between the parents and the frequent complaints by the applicant that the moth er had attempted to obstruct contact and to marginalise his role. It was clear that the maintenance of the same restricted contact arrangements was likely to entail, with the passage of time, a risk of severance of the applicant’s relationship with his son . The domestic courts should therefore have envisaged additional measures, more adapted to the specific circumstances of the case, but they had failed to obtain expert evidence from specialists familiar with the problems faced by persons suffering from a h earing impairment.

The domestic courts’ duty, in cases like the present one, was to address the issue of what steps could be taken to remove existing barriers and to facilitate contact between the child and the non-custodial parent. However, the national courts had failed to consider any means that would have assisted the applicant in overcoming the barriers arising from his disability and had thus not taken all appropriate steps that could reasonably be demanded with a view to facilitating contact.

Concl usion : violation (unanimously).

Article 41: EUR 16,250 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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