ECHR decision of 10 January 2017 in the case of Kacper Nowakowski v. Poland (application No. 32407/13).
In 2013, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Poland.
In the case, the complaint on the failure to take reasonable measures to facilitate the contact of the deaf-mute father with his son was successfully considered. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, who was deaf and dumb, married a woman who also suffered from hearing impairment. In 2006, the couple had a son. The couple divorced in 2007, and the Polish courts ruled that the boy should live with his mother, and the applicant has the right to see him two hours a week.
However, in 2011, when his son was almost five years old, the applicant appealed to the courts for expanding the rights of communication in order to strengthen his ties with the child. The applicant's application was rejected on the grounds that it would not meet his son's best interests in connection with the child's disability and his strong dependence on the mother, the need to involve the mother in contact visits, because she could use sign language and communicate verbally, whereas the father predominantly used sign language, and the son could only communicate verbally. In the conventional proceedings, the applicant complained, in particular, in accordance with Article 8 of the Convention, that the rejection of his request for increased contact with his son violated his right to respect for family life.
ISSUES OF LAW
Compliance with the requirements of Article 8 of the Convention. The main question was whether the domestic authorities had taken all the appropriate measures that could reasonably be required to facilitate contacts between the applicant and his son.
In its assessment of the motives advanced by the courts of the respondent State for refusing to expand contacts, the Court should have given due attention to two specific features of the present case, namely (i) a serious conflict between the parents and (ii) the corresponding disability of the applicant and his son.
With regard to the conflict between parents, the Court recognized that the task of domestic courts was complicated by the strained relations between the applicant and the mother of the child. However, the lack of cooperation between divorced parents was not a circumstance that could, in itself, free the authorities from their positive obligations under Article 8 of the Convention. On the contrary, it entrusted the authorities with the obligation to take measures to reconcile the conflicting interests of the parties, taking into account the dominant interests. In this context, the Court observes that (i) the Polish courts decided not to impose on the parents the obligation to undergo family therapy, despite the recommendations given by the experts on special counseling, (ii) the domestic law did not contain provisions on mediation in cases affecting family law, and (iii) the country's courts have not properly considered the possibility of using a number of existing instruments that could facilitate the expansion of contact.
With regard to the disability of the father and son, the applicant had an indisputable right to communicate with his son, and should take into account the issue of communication. The decision of the courts of Poland was to involve the mother of the child in the organization of communication (because she could communicate verbally and with sign language), but she did not take into account the existing hostility between the parents and the frequent complaints of the applicant that the mother had tried to impede contacts and marginalize his role. Obviously, maintaining the same limited contact order could, over time, threaten to sever the applicant's relationship with his son. Thus, the domestic courts had to establish additional measures more adapted to the specific circumstances of the case, but they could not obtain expert opinions of specialists familiar with the problems faced by persons suffering from hearing impairment.
The duty of domestic courts in cases such as the present was to consider what measures should be taken to remove existing barriers and to facilitate contact between the child and the parent who is not the guardian. However, the courts of the respondent State did not consider the means that would help the applicant to overcome the barriers resulting from his disability and, therefore, did not take all reasonable measures that could reasonably be required to facilitate contact.
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The Court awarded the applicant 16 250 euros in respect of non-pecuniary damage.