CASE OF KACPER NOWAKOWSKI v. POLAND
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1976 and lives in Białystok. 6. The applicant is deaf and mute. He uses sign language to communicate with other people. 7. The applicant and A.N. married on 20 August 2005. A.N. suffers from a hearing impairment and has had a hearing implant fitted. She communicates both orally and through sign language. 8. The son (S.N.) of the applicant and A.N. was born on 10 December 2006. He also suffers from a hearing impairment. In February 2007 the applicant and his wife separated. On 11 June 2007 A.N. filed a petition for divorce. 9. In the course of the divorce proceedings, on 19 July 2007 the Białystok Regional Court issued an interim decision on the applicant’s contact with his son. Under that decision, the applicant could visit his son every Tuesday and Thursday between 4 p.m. and 6 p.m. and every Sunday between 2 p.m. and 5 p.m. at the child’s place of residence and without the presence of any third parties. 10. The court ordered experts from the Białystok office of the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny “the RODK”) to prepare an opinion on the suitable form and frequency of the applicant’s contact with his son. In the course of his interview with the experts, the applicant underlined his commitment to maintaining contact with the child, without giving any details. The experts established that the applicant had not been visiting his son as frequently as he was allowed under the interim decision of 19 July 2007. The last contact had occurred on 25 August 2007. 11. In their opinion, dated 15 October 2007, the experts underlined that the emotional ties between the mother and the child were strong and natural. However, the ties between the applicant and his son were weak and superficial. In the view of the experts, taking into account the necessity to ensure the proper development of the child, contact between the applicant and the child should take place four times a month and last two hours on each occasion. 12. On 15 November 2007 the Białystok Regional Court granted a decree of divorce without ascribing blame for the breakdown of the marriage. In its judgment the court also ruled that parental authority should be exercised by both parents and that the child should reside with the mother. It further ruled that the applicant had a right to see his son on the first three Fridays of each month from 4 p.m. until 6 p.m. and on every fourth Sunday of each month from 11 a.m. until 1 p.m. Contact should take place at the mother’s home in her discreet presence but in the absence of third parties. The applicant was further ordered to pay child maintenance. 13. It appears that neither of the parties appealed against the judgment, which consequently became final on 6 December 2007. 14. In August 2011 the applicant filed an application with the Białystok District Court for a change to his contact arrangements. He asked 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 until 6 p.m. on Sunday, away from the mother’s home. He also asked to be allowed to see his son for some time over the Christmas and Easter periods and to spend with him half of the winter holidays and half 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. 15. The applicant admitted that after the divorce he had not seen his son for one year on account of his health problems. He submitted that his son was happy to spend time with him and to play with him. The applicant asserted that he had been able to provide appropriate care to his son and that in the event of need he could count on the support of his family. It was the mother of the child who had obstructed his contact with the child and made the atmosphere unfriendly. For example, she refused to pass on oral messages from their son to the applicant. The mother did not inform him about important decisions concerning the child and tried to marginalise him. 16. The mother submitted that the applicant had remained passive during his meeting with S.N. and that she had not obstructed those meetings. In her view, S.N. did not have any 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. 17. On 4 November 2011 a court guardian submitted a report to the court. According to that report, the applicant had not been visiting his son regularly on account of his being treated for depression and other illnesses. He had not seen his son since 12 October 2011. However, the mother of the applicant had been visiting her grandson regularly. 18. On 15 March 2012 the applicant applied for an interim decision and asked for the right to have contact with his son during the second day of the Easter holidays, from 10 a.m. to 5 p.m., and to take him away from his place of residence. On 23 March 2012 the Białystok District Court issued an interim decision allowing the applicant to visit his son during the second day of the Easter holidays from 11 a.m. to 1 p.m. at the child’s place of residence. 19. On 30 April 2012 the RODK issued an opinion commissioned by the District Court. It had been prepared by a psychologist, an education specialist and a psychiatrist who had met the parents and the child and had been assisted by an interpreter of sign language. The experts stated that emotional ties between the mother and the child were strong – indeed, the mother had a tendency to be overprotective. The child’s ties with the father were superficial and weak. The child recognised the applicant as his father but did not consider him a part of 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 counselled by a specialist with a view to their being taught how to accept each other as a parent. 20. The experts opined that an increase in contact, as requested by the applicant, was not advisable, on account of the limited level of communication between him and the child, the child’s age and history, and the strength of the child’s ties with the mother and maternal grandparents. They recommended, however, that contact should also take place outside the mother’s home (at playgrounds, during walks) but in her presence. The mother should cooperate with the father and support him in making his 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 interests of the child required that the parents cooperate with each other, despite the communication problems. The experts added that the mother should be more proactive in this regard but that the father should not contest the mother’s decisions concerning the child. 21. The applicant contested the experts’ findings and alleged that the opinion should have been prepared with the assistance of a specialist in deaf education and a psychologist specialising in the needs of deaf people. He claimed that their finding that contact could not take place without the presence of the mother on account of his (that is to say the applicant’s) disability amounted to discrimination. The experts had also disregarded the possibility of the paternal grandmother rendering assistance and of ordering the parents to undergo family therapy. 22. 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 people but stated that such methods were not necessary in respect of determining the advisability of maintaining contact. She noted that the child was well-developed and rehabilitated (zrehabilitowanym). The main obstacle in respect of contact was the conflict between the parents and the lack of cooperation between them. Such circumstances created a particular difficulty in the case of a child with a hearing impairment. The psychologist observed that the applicant’s disability also constituted an objective obstacle. In her opinion, contact should take place two to three times a month. 23. The court dismissed the applicant’s request for a second expert opinion since the earlier opinion was complete and comprehensive. 24. The court also heard the parties and witnesses (family members). It further took into account information submitted by a court guardian after visiting the applicant’s and the mother’s respective homes, together with relevant documentary evidence. 25. On 9 August 2012 the Białystok District Court dismissed the applicant’s application for a change to the contact arrangements. 26. 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. Since September 2009 the child had attended a nursery school with an integration unit, where he had remained under the supervision of a specialist in deaf education, a speech therapist and a psychologist. He suffered from a hearing impairment and used a hearing aid. The child required specialised medical care and followed a rehabilitation programme. He was certified as having a second-degree disability. 27. Having regard to all the evidence, and in particular the expert opinion, the court found that the requested change to the contact arrangements would not be in the child’s best interests. It was true that the first decision in respect of contact had been given five years previously, when S.N. had been 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 specifics of the child’s development, his state of health, his disability, the need for his permanent medical rehabilitation and his heavy dependence on his mother and maternal grandparents. The court found that these elements still justified the discreet presence of the mother and at her home during the applicant’s contact visits. It noted that the requested change to the contact arrangements would be too far-reaching, since the applicant wanted to see his son more often, outside S.N.’s place of residence and without the mother being present. The court 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 kept to scheduled visits. Sometimes the reasons for this had been beyond his control (health problems or evening school commitments) and sometimes contact had been obstructed by the mother. However, in consequence, his limited and irregular involvement in the child’s life had adversely influenced the emotional ties between the father and the son. 28. The court underlined that the applicant had not been fully availing himself of his rights to contact his son, as granted by the divorce judgment. Nonetheless, once their ties were strengthened and the applicant made full use of the rights already granted to him, it would be possible to extend contact. 29. 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 constituted a discriminatory measure against him; rather, it constituted an objective and independent factor that hampered his communication with the child. The applicant, irrespective of his own and his son’s disability, had an incontestable right to contact with his son. However, the communication problem should be taken into account in regulating the contact arrangements so they would remain as favourable as possible to the child. The court noted that the applicant used mostly sign language (and articulated a few single words), while the child communicated only orally, so communication difficulties naturally arose. For this reason, it was still justifiable that the mother, who was able both to use sign language and communicate orally, should be present during the applicant’s visits. The mother’s presence, which provided the child with a sense of security, could also help him to relax during his meetings with the father. The court disagreed with the applicant that the paternal grandmother could ensure proper communication between him and his son. The issue was not only about interpreting between sign language and speech but also about ensuring security and stability, which could only be provided by the mother. The applicant’s son did not know his paternal grandmother well and so her presence would not compensate for the absence of his mother. 30. The court underlined that the applicant’s contact with his son should first and foremost ensure the security and stability of the child. The stress to which he would be exposed in the event of a change to his current environment and in the absence of persons with whom he usually spent 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 (that is to say outside his home and without his mother), so he could easily stay at the applicant’s father’s home. It noted that the mother had been preparing her son for nursery school over a long period of time and had at first attended the school with him for short periods of time so he could become familiar with the place. 31. The court observed that the child’s paternal grandmother had not visited her grandson for some time and was therefore not a person with whom the child was familiar or who could assist as an interpreter between the applicant and his son. 32. The fact that the child had been paying short unsupervised visits to a neighbour of the mother’s family did not support the applicant’s argument either. The court noted that the neighbour was a familiar person to the child, since he had been regularly visiting the child’s family. In addition, the unsupervised visits to the neighbour’s flat did not last longer than one hour. 33. Lastly, the court did not consider it necessary to impose an obligation on the parents to undergo 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 therapy for persons with impaired hearing was the premises of a foundation (fundacja) 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. 34. The applicant lodged an appeal with the Białystok Regional Court. He argued that the District Court had failed to respect the principle of non-discrimination against deaf and mute persons by dismissing his application for unsupervised contact with his son. He invoked Article 4 § 1 of the Convention on the Rights of Persons with Disabilities. The applicant further argued that the lower court had erred in holding that the child’s interests did not justify a change to contact arrangements. The expert opinion indicated 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. 35. The applicant contested the lower court’s finding that the child’s paternal grandmother was a stranger to him; he argued that the child would not be exposed to stress in the event of contact without the mother’s presence and outside her home in view of the fact that the child attended nursery school and was cared by a neighbour a few times a week. Lastly, the applicant contested the refusal to order a supplementary expert opinion. 36. On 23 November 2012 the Białystok Regional Court dismissed the applicant’s appeal. It found that the lower’s court assessment of the evidence had been correct and that the refusal to order a supplementary expert opinion had been justified. 37. The Regional Court noted that the contact arrangements could be amended if the interests of the child so required (Article 1135 of the Family Code). It concurred with the lower court that there was no justification for a change to the existing arrangements since the applicant already had the possibility of regular contact with his son and if used this would enable the parties to strengthen their ties. The findings of the RODK experts clearly supported the conclusion that no change was necessary. The Regional Court also agreed that the existing conflict between the parents would certainly prevent the applicant from benefitting from increased contact. It stressed that the priority of the court in such cases was to take into account the interests of the child, not the interests of either of his or her parents. 38. 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 the primary carer, with strong ties to the child. The paternal grandmother could not provide the same sense of security. 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 lower court’s taking into account the issue of communication barrier had amounted to discrimination against him. The communication barrier was a real obstacle to the forging of ties between the applicant and his son and it could not be disregarded, given that the interests of the child were of primary consideration, overriding the individual interests of the parents. The Regional Court stressed that this constituted an objective obstacle, not a form of discrimination against the applicant. 39. In July 2011 A.N. brought an action in the Białystok District Court for an order limiting the scope of the applicant’s parental authority over S.N. to those issues that concerned their son’s education. She submitted that the applicant had refused to give his consent to an identity document being issued for the child. 40. In October 2011 the applicant brought a counteraction seeking an order to compel A.N. to undergo family therapy. He argued that A.N. was acting to the child’s detriment by refusing to cooperate with the applicant in matters concerning the child. She also humiliated and insulted the applicant in the child’s presence and undermined his authority. 41. On 2 August 2012 the Białystok District Court restricted the applicant’s parental authority over S.N. to issues concerning his education. It dismissed the applicant’s counteraction. 42. The court relied on the opinion prepared by the experts of the RODK for the purposes of the proceedings. The experts concluded that the joint exercise of parental authority was practically impossible. The reason for this was the permanent conflict between the parents, as well as the communication difficulties. The experts recommended that both parents undergo therapy with a view to developing their parenting skills. They further pointed out that that the possibility of communication between the applicant and his son was significantly restricted because of the different method that each used to communicate. In the view of the experts, the mother of the child properly exercised her parental authority, in particular with respect to the child’s needs, the necessity of treatment, and the development of the child’s social skills. 43. Having regard to the evidence, the court found that it was justifiable to restrict the applicant’s parental authority and limit it only to matters concerning the child’s education. Its decision was motivated by the lack of agreement between the parents in respect of the exercise of parental authority. The applicant was not to be solely blamed for this situation. Furthermore, communication with the applicant was limited on account of his disability; however, the mother had been aware of this fact since the beginning of their relationship. The court further took into account the fact that the child was being raised by the mother, the parents lived apart, and there was a communication barrier between the applicant and the child. This was of importance in respect of matters concerning the child’s health. The court underlined that the fact that communication between the applicant and his son was limited did not mean that the applicant was a bad father. The court found that it was not necessary to give the applicant the possibility to have a say in matters concerning the child’s medical treatment since these were sometimes urgent – therefore, it was the mother, with whom the child lived, who should decide on them. 44. With regard to the applicant’s request for the mother to be obliged to undergo family therapy, the court did not find this justified. It took into account the fact that the mother had already been attending a support group and found no reasons to formally oblige her to undergo therapy. It was established that the mother had independently taken important decisions concerning the child of which she had not informed the applicant and that she was overprotective. Nonetheless, the court found that she properly exercised her parental authority and that the child’s welfare was not endangered. 45. The applicant appealed. 46. On 23 November 2012 the Białystok Regional Court dismissed the applicant’s appeal. It underlined that the court of first instance had comprehensively assessed the evidence in the case. In the view of the Regional Court, the limitation of the applicant’s parental authority was in the interests of the child. It ruled that the communication barrier constituted an objective obstacle to relations between the applicant and his son and that taking it into account could not be considered to constitute a form of discrimination against the applicant.