Failure to Facilitate Contact a Breach of Human Rights

The European Court of Human Rights (ECHR) has ruled that the failure of Polish courts to take all appropriate steps to facilitate contact between a father and his son was a breach of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

Case Details

The case concerned Kacper Nowakowski, a Polish national, who was deaf and mute. In August 2005 Mr Nowakowski married a woman who also hearing impaired. The couple had a son in 2006, who also suffered a hearing impairment. In 2007 they divorced, and primary custody of their son was awarded to the mother. Mr Nowakowski was allowed to see his son for two hours every week, and initially these arrangements were acceptable to him.

However, in 2011 Mr Nowakowski applied to the courts for an extension of his contact rights in order to strengthen their ties. He also asked that this contact take place without the mother’s presence, because of attempts to undermine him during visits and the generally unfriendly atmosphere.

Request for Extended Contact Rights Denied

The Polish court refused this request on the grounds that it would not be in his son’s best interests. In reaching this decision, the court apparently took account of 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. In addition, 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.

The fact that the courts had taken the communication barrier into account in their decisions was not viewed as discriminatory because the courts considered this barrier to be a real obstacle to the forging of ties between father and son.

Mr Nowakowski complained against the decision to the ECHR, claiming 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.

ECHR Decision

The ECHR has now given its ruling in relation to Mr Nowakowski’s complaint. It found that although 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.

It said that the Polish 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.

They had also 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. Instead, the courts had relied on expert reports which had focused on the communication barrier between father and son rather than reflecting on the possible means of overcoming it.

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. It awarded Mr Nowakowski EUR 16,250 in respect of nonpecuniary damage and EUR 698 for costs and expenses.

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