CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 janvier 2017

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POLAND   (Application no. 32407/13)           JUDGMENT     STRASBOURG   10 January 2017       FINAL   10/04/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Kacper Nowakowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a   Chamber composed of:   András Sajó, President,   Vincent A. De Gaetano,   Nona Tsotsoria,   Krzysztof Wojtyczek,   Iulia Motoc,   Gabriele Kucsko-Stadlmayer,   Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 22 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 32407/13) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Kacper Nowakowski (“the   applicant”), on 10 May 2013. 2.     The applicant was represented by Ms B. Skalimowska, a lawyer practising in Białystok. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that the decision concerning his contact rights had amounted to a violation of Article 8 of the Convention and Article 14 of the Convention read in conjunction with Article 8. 4.     On 29 September 2014 the above-mentioned complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. The application was granted priority treatment under Rule 41 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1976 and lives in Białystok. A.     Background facts 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. B.     Proceedings concerning a change in contact arrangements 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 113 5 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. C.     Proceedings concerning parental authority 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. II.     RELEVANT DOMESTIC LAW A.     Constitution of the Republic of Poland 47.     The relevant articles of the Constitution provide as follows: “ Article 47 . Everyone shall have the right to legal protection of his private and family life ... Article 69 . Public authorities shall provide, in accordance with statute, assistance to disabled persons to ensure their subsistence, adaptation to work and social communication.” B.     Family and Custody Code 48.     The relevant part of the Family and Custody Code of 1964, as in force at the material time, reads: “ Article 113 . § 1. Regardless of [who exercises] parental authority, the parents and their child have the right and obligation to maintain contact with each other. § 2. Contact with the child will include, in particular, spending time with the child (visits, meetings, taking the child outside of his or her place of residence) and direct communication, maintaining correspondence, and using other means of distance communication, including electronic communications. Art. 113 1 . § 1. If the child lives permanently with one parent, the manner of the other parent maintaining contact with the child shall be determined by the parents jointly, having regard to the welfare of the child and taking into account his or her reasonable wishes; in the absence of an agreement [between the parents] the guardianship court shall decide. § 2. ... Article 113 2 . § 1. If the welfare of the child so requires, the guardianship court shall limit contact between [either or both] parents and the child. § 2. The guardianship court may, in particular: 1) prohibit meetings with the child, 2) prohibit taking the child outside of his or her place of residence, 3) allow a meeting with a child only in the presence of the other parent or foster parent, a guardian, or another person designated by the court, 4) limit contact to specific kinds of distance communication, 5) prohibit distance communication. Article 113 4 . When deciding on the matter of contact with the child, the guardianship court may compel the parents to undertake a specific course of action; in particular, [it may] refer them to institutions or specialists providing family therapy, counselling or other appropriate assistance to the family, at the same time indicating the manner of overseeing compliance with the orders issued. Article 113 5 . The guardianship court may change its decision on contact, if the welfare of the child so demands.” III.     INTERNATIONAL LAW INSTRUMENTS A.     Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) 49.     The relevant provisions of the Convention on the Rights of Persons with Disabilities, which came into force in respect of Poland on 25 October 2012, read as follows: Article 5 - Equality and non-discrimination “1.     States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2.     States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3.     In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4.     Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.” Article 23 - Respect for home and the family “1.     States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that: a.     The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized; b.     The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided; c.     Persons with disabilities, including children, retain their fertility on an equal basis with others. 2.     States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child ‑ rearing responsibilities. ... 4.     States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents. ...” B.     Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 (Resolution   44/25) 50.     The relevant provisions of the Convention on the Rights of the Child, which came into force in respect of Poland on 7 July 1991, read as follows: Article 3 “1.     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ...” Article 9 “1.     States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child... ... 3.     States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” IV.     COUNCIL OF EUROPE MATERIALS 51.     Recommendation No. R (98) 1 of the Council of Europe’s Committee of Ministers to member States on the Family Mediation, adopted on 21 January 1998, recognised the growing number of family disputes, particularly those resulting from separation or divorce. Noting the detrimental consequences of conflict for families, the texts recommended that the member States introduce or promote family mediation or, where necessary, strengthen existing family mediation. In accordance with paragraph 7 of the Recommendation, the use of family mediation could “improve communication between members of the family, reduce conflict between parties in dispute, produce an amicable settlement, provide continuity of personal contacts between parents and children, and lower the social and economic costs of separation and divorce for the parties themselves and States” (see also the European Commission for the Efficiency of Justice’s Guidelines for a better implementation of the existing recommendation concerning family mediation and mediation in civil matters (CEPEJ (2007)14)). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52.     The applicant complained that the dismissal of his application for an extension of contact with his son had infringed his right to respect for his family life. He alleged that the courts had offered him no assistance in facilitating contact with his son. The applicant relied on Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 53.     The Government maintained that the application was inadmissible on account of the applicant’s lack of victim status. They underlined that the dismissal of the applicant’s request for an extension of contact did not affect contact arrangements already in place. The applicant had not visited his son for one year after the divorce judgment and, when he had renewed contact, his visits had not been as frequent as had been possible under the divorce judgment. 54.     The applicant disagreed with the Government’s submission. It was true that after the divorce he had not made use of all the possibilities for contact with his son, but he underlined that he had been hospitalised during that period. There had been problems with diagnosing the applicant’s medical problems and it had been suspected that he might have been suffering from some infectious disease. During the period in question, the applicant had not visited his son because he had not wanted to transmit a disease to him. Eventually, the applicant had been diagnosed with pernicious anaemia (which had been caused by stress related to the divorce) and Hashimoto’s disease. The applicant was also suffering from depression, for which he had started undergoing therapy. Accordingly, the applicant could not be blamed for missing visits during 2007 and 2008. 55.     The Court considers that the Government’s objection regarding the lack of victim status is closely linked to the merits of the complaint under Article 8. It therefore joins this objection to the merits. 56.     The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It   notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The applicant’s submissions 57.     The applicant submitted that his son, born in 2006, had been only eleven months old on the date of the divorce judgment. The applicant did not question that an infant in the first months of his life should reside with the mother. However, with the passage of time, the child’s needs had changed and for this reason the applicant had filed his motion for an extension of contact in August 2011. His son had started his pre-school education and he did not require the constant presence of his mother. In the applicant’s view, this was the right moment to have contact with his son in places other than at the mother’s home. 58.     The applicant agreed that the interests of the child were of primary importance and should prevail over the interests of the parents. However, in order to ensure S.N.’s proper development, the child should have the possibility of seeing his father as often as possible. Many psychological studies had indicated that the marginalisation of the father’s role could have a negative influence on a child’s well-being and personal development. It was in the joint interests of the father and the child to have frequent and lasting contact in a diverse environment. The applicant alleged that the domestic courts had done nothing to promote the ties between him and his son and had deprived the applicant of the possibility of being a real parent to his son. 59.     The applicant argued that the domestic courts had not taken into consideration many relevant factors of which they had been aware. For example, the mother and the maternal grandmother of S.N. had created an unfriendly environment when the applicant had been visiting his son. The applicant could visit his son only in a room of a surface area no greater than four square metres, even though S.N. had his own bedroom. The applicant wanted to spend more time with his son and felt a strong emotional connection with him. However, the conditions during his visits could not be described as neutral and did not guarantee freedom of communication between the applicant and his son. During visits, the applicant was treated dismissively. The mother and the maternal grandmother did not communicate with each other and with the child in sign language, so the applicant was excluded from any discussion and felt left out. In these conditions, it was really difficult to create closer ties with his son. Furthermore, the district court was aware that the mother was refusing to teach S.N. sign language and that the child consequently could not communicate with the applicant without the assistance of third parties. 60.     The applicant disagreed that his disability and the resulting communication barrier were only one of many reasons for the dismissal of his application. It was the failure to adjust the contact arrangements to reflect the age of the child and the applicant’s hearing impairment which had created the communication barrier. The applicant submitted that all parties to the case (that is to say the child and both parents) suffered from a hearing impairment. The mother had a problem with both oral and sign language communication and, contrary to the Government’s assertions, she was unable to serve as an interpreter between the applicant and his son. 61.     The applicant submitted that during visits he had taught sign language to his son. This was necessary for establishing stronger ties between them and moulding the identity of the child, as well as helping the child to avoid problems with functioning in the society. In addition, the fact that the mother did not teach S.N. sign language for the purposes of enabling him to communicate with the applicant could not be seen as conducive to the child’s well-being. 62.     The applicant’s disability could not be seen as an objective obstacle to his communication with S.N. When the applicant and A.N. had decided to establish a family and to have a child, they had taken into consideration their respective disabilities and all consequences that might arise therefrom. The actions of the mother – who had tried to eliminate the applicant from his son’s life by limiting their contact – had been irresponsible. The decision of the domestic courts should have furthered the child’s interests, namely that the child should have had the opportunity to spend time with his father and his father’s family in the applicant’s home. The applicant should have been given a chance to make his son feel secure in his presence. 63.     The applicant maintained that the child’s best interests demanded a broader perspective than the one adopted by the domestic courts. It was essential to promote the ties between the applicant, his son and the applicant’s family in order to ensure the optimum development of the child in the light of the child’s disability. A deaf-mute father could understand better than anybody else what kind of obstacles his disabled son could encounter in his life. The applicant had the necessary experience and wanted to prepare his son for the challenges of adult life. 64.     The applicant argued that the domestic courts had not taken any measures prescribed by the law or necessary for the well-being of the child which could have ended the conflict between the parents. On one hand, the domestic courts had made any future change in contact arrangements conditional upon the applicant developing stronger ties with his son, but on the other hand, they had not been proactive in encouraging this to happen. The mother had acted as an intermediary between the applicant and S.N., even though she had been in big conflict with the applicant. The conflict between the parents should not have been allowed to have an effect on the father’s contact with his child. 65.     The domestic courts had treated the applicant as if he were intellectually or emotionally disabled. On account of his disability the applicant was, to some extent, isolated from society, but at the same time he was fully physically and mentally capable. The applicant studied, worked and was independent in all his life activities. He had graduated from a high school for adults and had obtained a qualification as a masseur. The domestic courts’ finding that the applicant, on account of his hearing impairment, would not be able to ensure his son’s safety during contact outside the mother’s house was highly discriminatory. In conclusion, the applicant stated that the court decisions had violated his right to respect for his family life. 2.     The Government’s submissions 66.     The Government were convinced that the conduct of the domestic courts had not violated Article 8 of the Convention. They submitted that the applicant had agreed to a no-fault divorce and for years had not questioned the ruling concerning his contact with his son. In addition, the applicant had not visited his son for one year following the granting of the divorce, and in the subsequent period his contacts with his son had not been as regular as that provided for by the divorce judgement. 67.     The Government underlined that the disability of the applicant and the communication barrier had not been the only or primary reasons for issuing the decision complained of by the applicant. The domestic courts had been guided by the child’s best interests and had taken into account various elements, such the child’s development, his state of health, and his strong ties with his mother and with his maternal grandparents. 68.     The right to maintain contact was primarily the right of the child and not the right of the parents. In the present case, the interests of the applicant’s minor child, who was disabled like his father, should prevail. The Government underlined the necessity of continuing the child’s treatment and rehabilitation so as to ensure the best prospects for his development in the future. The domestic courts had taken into account the fact that children with impaired hearing were more exposed to stress related to changes in their routines, since they were not always able to understand external factors. Accordingly, the necessity of guaranteeing a sense of safety and stability was crucial for the child’s proper development which, in the domestic courts’ view, could only be ensured by the child’s mother. Furthermore, the child’s mother could serve as an interpreter between the applicant and his son, since she used both oral and sign language. 69.     In addition, the domestic courts underlined that the applicant’s right to contact with his son remained unquestioned. Nonetheless, objective obstacles, such as the disability of a parent or of a child, should be taken into account when deciding on the form of contact. The Government emphasised that once the applicant established ties with his son and overrode the communication barrier there would be prospects for extending his contact rights. However, the applicant should first familiarise the child with himself within the scope of the existing contact arrangements. 3.     The Court’s assessment (a)     Relevant principles 70.     The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “ family life” within the meaning of Article 8 of the Convention, even if the relationship between the parents has broken down (see, among other authorities, Elsholz v. Germany [GC], no.   25735/94, § 43, ECHR 2000 ‑ VIII, and G.B. v.