Child’s welfare, psychological safety must prevail, psychiatric assessments only when necessary: SC

The Supreme Court on Thursday issued detailed guidelines for courts dealing with cases involving the custody of a child who is an alleged victim under the Protection of Children from Sexual Offences (POCSO) Act, emphasising that the child’s welfare, dignity, emotional security and psychological well-being must remain the paramount consideration at all stages of the proceedings.

A bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh, in a judgment on Thursday, underscored that any judicial intervention concerning a child victim must follow a child-centric and welfare-oriented approach, with the overarching objective of safeguarding the child from further psychological harm.

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Pronouncing the judgment, Justice Nongmeikapam Kotiswar Singh said that the psychological or psychiatric evaluation of a child victim should not be ordered routinely merely because disputes relating to custody, visitation or parental access are pending. Before directing such an exercise, courts must record specific reasons demonstrating its necessity and relevance, while adopting the principle of minimum intrusion and minimum exposure.

“Psychological or psychiatric evaluation of a child victim shall not be directed as a matter of routine merely because issues of custody, visitation or parental access arise between litigating parents/relatives”, said Justice Singh authoring the judgment.

The Court stressed that repeated or overlapping evaluations should ordinarily be avoided and, wherever necessary, the assessment should be conducted by an independent and neutral court-appointed expert. Appointment of a panel of experts, the court said, should remain an exceptional course.

The Court further directed that the entire evaluative process must remain child-centric and welfare-oriented and should not assume the character of an adversarial, investigative or evidence-gathering exercise. Courts must remain conscious of the risk of re-traumatisation arising from repeated narration of traumatic experiences and should carefully regulate the number of sessions, duration of interaction and the professionals interacting with the child.

The guidelines also require strict confidentiality of the child’s identity, disclosures and therapeutic records, while ensuring that evaluative reports remain confined to the purpose for which they were sought and do not venture into findings of criminal culpability.

The Court further emphasised continuity of therapeutic care, safeguards for virtual interactions, continuing judicial supervision over the evaluation process, periodic assessment of the child’s psychological well-being, and, where necessary, psychological evaluation of parents. It observed that expert assistance regarding the mental health of both the child and the parents could serve as an important aid for courts in crafting orders that best secure the child’s welfare.

The Court clarified that the 20 guidelines are neither exhaustive nor intended to be applied mechanically in every case. It observed that issues concerning a child’s psychological condition, emotional responses and welfare needs do not lend themselves to rigid formulas, particularly in cases involving estranged parents and allegations of abuse. The Court noted that children’s emotional needs are inherently dynamic and may vary not only from one child to another, but also over time depending on factors such as age, therapy, family environment, schooling and social circumstances.

The Court further said that it would be neither possible nor appropriate to prescribe fixed intervals for psychological assessments or counselling. Such decisions must be left to the discretion of the concerned court, to be exercised on a case-by-case basis with the assistance of psychologists, counsellors or other experts where necessary. Emphasising that the child’s best interests, dignity, emotional security and psychological welfare must remain paramount, the Court said the guidelines are intended to ensure that judicial processes remain trauma-informed and child-centric, and do not themselves become a source of distress or secondary victimisation.

The appeal before the Supreme Court arose from orders passed by the Bombay High Court directing psychological evaluation of a 10-year-old child through a panel of experts to facilitate reconnection with her father. The mother challenged the High Court’s decision to replace an earlier direction for evaluation by a single independent expert with a four-member panel, including professionals suggested by the father and experts located outside Jalgaon and even outside India.

The core issue before the Court was not merely one of custody, visitation or parental access, but how courts should balance a parent’s claim for restoration of contact with a child against the need to protect the welfare, dignity, emotional security and psychological well-being of a child who is living in a fractured family environment and has also alleged sexual abuse by her father. The case required the Court to determine the extent to which judicially ordered psychological evaluations can be undertaken without aggravating the child’s trauma or compromising her emotional recovery.

n view of the guidelines issued, the top court partially allowed the appeal filed by the mother and modified the Bombay High Court orders dated April 27, 2023 and December 7, 2023.

The case arose out of a matrimonial dispute between the parties, who married in February 2015 and subsequently moved to the United States, where their daughter was born on June 24, 2016. The wife alleged that during their stay in the US between 2018 and 2019, she was subjected to physical abuse by the husband and that the minor child was sexually abused by him when she was around two years old.

Following an alleged incident of domestic violence in December 2019 and proceedings before New Jersey police authorities, the wife returned to India with the child on December 30, 2019, and later issued a notice seeking divorce by mutual consent.

The dispute thereafter escalated into multiple custody and matrimonial proceedings. The husband initially approached the Supreme Court and later the Bombay High Court seeking custody and access to the child, resulting in limited virtual access being granted to the father through video conferencing.

During these proceedings, the wife raised allegations of sexual abuse against the husband and lodged a police complaint in Pune in October 2020. She also initiated proceedings under the Protection of Women from Domestic Violence Act, 2005, and subsequently filed a petition seeking dissolution of marriage under the Hindu Marriage Act, 1955.