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issued by the Registrar of the Court   ECHR 007 (2017)   10.01.2017   Polish authorities failed to facilitate contact   between deaf and mute father and his son   In today’s Chamber judgment1 in the case of Kacper Nowakowski v. Poland (application   no. 32407/13) the European Court of Human Rights held, unanimously, that there had been:   a violation of Article 8 (right to respect for private and family life) of the European Convention on   Human Rights.   The case concerned the contact rights of a deaf and mute father with his son, who also has a hearing   impairment. Mr Nowakowski, the applicant, complained in particular about the dismissal of his   request to extend contact with his son.   The Court found in particular that, even though the parents’ strained relationship had admittedly   not made the Polish courts’ task an easy one when deciding on contact rights, they should   nonetheless have taken measures to reconcile the parties’ conflicting interests, keeping in mind that   the child’s interests were paramount. The courts had notably not properly examined the possibilities   which existed under domestic legislation of facilitating the broadening of contact between   Mr Nowakowski and his son. Moreover, they had failed to envisage measures more adapted to   Mr Nowakowski’s disability, such as obtaining expert evidence from specialists familiar with the   problems faced by those with hearing impairments. Indeed, the courts had relied on expert reports   which had focused on the communication barrier between father and son instead of reflecting on   the possible means of overcoming it.   Principal facts   The applicant, Kacper Nowakowski, is a Polish national who was born in 1976 and lives in   Białystok (Poland).   In August 2005 Mr Nowakowski, who is deaf and mute, married A.N., who also has a hearing   impairment. The couple had a son in 2006. They divorced in 2007; the domestic courts ruled that   their son, at the time 11 months old, was to reside with his mother and that Mr Nowakowski was   allowed to see his son for two hours every week. Mr Nowakowski did not object to these   arrangements.   However, in August 2011, when his son had reached the age of almost five, Mr Nowakowski applied   to the courts for an extension of his contact rights in order to strengthen their ties. He notably   requested that the contact take place without the mother and away from her home, on account of   her attempts to undermine him during visits and the generally unfriendly atmosphere.   The courts ultimately refused Mr Nowakowski’s request in November 2012, finding that it would not   be in his son’s best interests. The courts took into account a number of factors, such as the child’s   disability and heavy dependence on his mother, and in particular the fact that she ensured security   and stability for the child during the visits. Furthermore, the courts considered that it was necessary   to involve the mother in the visits, as she was able to use sign language and communicate orally,   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   whereas the father mostly used sign and the son only communicated orally. Moreover, the fact that   the courts had taken into account this communication barrier in their decisions was not viewed as   discriminatory; the courts considered the barrier to be a real obstacle to the forging of ties between   father and son. Lastly, it was not considered necessary to impose an obligation on the parents to   undergo family therapy, as recommended by experts in a number of reports drawn up during the   proceedings, as the mother had already attended a parent support group and the father had   declared that he could attend the same group. During those proceedings, Mr Nowakowski’s request   for a further expert report to be prepared by specialists in the needs of deaf people was rejected.   In a parallel set of proceedings, the courts decided to restrict Mr Nowakowski’s parental authority   over his son to issues concerning his education, again citing the best interests of the child.   Complaints, procedure and composition of the Court   Mr Nowakowski complained about the dismissal of his application for an extension of contact with   his son, maintaining that the child’s best interests had demanded a broader perspective than the   one adopted by the domestic courts. He also alleged that the dismissal of his request for increased   contact had been solely on the ground of his disability and had been highly discriminatory. He relied   on Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination)   of the European Convention.   The application was lodged with the European Court of Human Rights on 10 May 2013.   Judgment was given by a Chamber of seven judges, composed as follows:   András Sajó (Hungary), President,   Vincent A. De Gaetano (Malta),   Nona Tsotsoria (Georgia),   Krzysztof Wojtyczek (Poland),   Iulia Motoc (Romania),   Gabriele Kucsko-Stadlmayer (Austria),   Marko Bošnjak (Slovenia),   and also Andrea Tamietti, Deputy Section Registrar.   Decision of the Court   The Court underlined the importance of a child preserving and developing his or her ties with his or   her family, and considered that, in principle, it was in the child’s best interests to maintain contact   with both parents. Furthermore, Mr Nowakowski’s right to see his son had never been in dispute for   the national courts.   The Court assessed the reasons given by the national courts for dismissing Mr Nowakowski’s request   for extended contact with his son, taking into account two specific features of the case, namely: the   serious conflict between the parents; and Mr Nowakowski’s disability as well as his son’s.   As concerned the conflict between the parents, the national courts had been aware of the animosity   between them, which had notably surfaced in the parallel set of proceedings concerning parental   authority. In addition, the experts commissioned by the courts to give their opinion on the contact   arrangements had noted conflict between the parents and had recommended that both parents   have specialist counselling, stressing the need to develop a new pattern of contact. However, the   courts did not heed the experts’ recommendation, given that the mother had already attended a   family support group and that the father intended to join the same group. Nor had the courts   properly examined the possibility of resorting to the different legal instruments provided for under   domestic legislation which could have facilitated the broadening of contact between   Mr Nowakowski and his son. Therefore, even though the parents’ strained relationship had   admittedly not made the courts’ task an easy one, they should nonetheless have taken measures to   reconcile the parties’ conflicting interests, keeping in mind that the child’s interests were   paramount.   As concerned Mr Nowakowski’s disability and the communication barrier with his child, the Court   noted that the courts’ solution to the problem had been to involve the child’s mother in the contact   arrangements, since she was able to communicate both orally and in sign language. However, that   solution had ignored the animosity between the parents and Mr Nowakowski’s frequent complaints   about the mother’s attempts to obstruct contact and marginalise his role. Moreover, the courts had   failed to envisage measures more adapted to Mr Nowakowski’s disability, such as obtaining expert   evidence from specialists familiar with the problems faced by those with hearing impairments.   Indeed, in their decisions the courts had relied on expert reports which had focused on the   communication barrier between father and son instead of reflecting on the possible means of   overcoming it.   Lastly, the Court noted that maintaining the same restricted contact arrangements had been likely to   entail, with the passage of time, a risk of Mr Nowakowski’s relationship with his son being severed.   In conclusion, the Court was of the view that the national courts had not taken all appropriate steps   to facilitate Mr Nowakowski’s contact with his son, in violation of Article 8.   Given the above analysis and the violation found, the Court held that there was no need to examine   separately Mr Nowakowski’s complaint under Article 14, taken together with Article 8.   Article 41 (just satisfaction)   The Court held that Poland was to pay Mr Nowakowski 16,250 euros (EUR) in respect of non-   pecuniary damage and EUR 698 for costs and expenses.   Separate opinions   Judge Sajó and Judge Motoc both expressed separate opinions. These opinions are annexed to the   judgment.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. To receive   the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter   @ECHRpress.   Press contacts   [email protected] | tel.: +33 3 90 21 42 08   Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)   Denis Lambert (tel: + 33 3 90 21 41 09)   Inci Ertekin (tel: + 33 3 90 21 55 30)   George Stafford (tel: + 33 3 90 21 41 71)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member   States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   3