Mother’s presence in father-child communication should be avoided when there is a strong rivalry between them.
JUDGMENT
Kacper Nowakowski v. Poland (application no. 32407/13) 10.01.2018
SUMMARY
Communication of the father with his son. Communication with the presence of the mother. National courts in their communications decisions should take into account the intensity of litigation between parents and the complaints of the communicating parent with his child to prevent communication from the other parent. Ignoring the above and not facilitating communication by the courts constitute a violation of Article 8 of the ECHR.
USE
Extremely useful decision on the right of communication of a separated parent. Courts must take seriously into account when deciding, the severity of hatred between parents and their complaints in order to make decisions that enable them to communicate with the child, and not to cancel or block the communiocation, such as the mandatory presence of the other parent at the time of the communication.
PROVISION
Article 8
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, 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.
THE 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 nonpecuniary 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.
