Recently, the Supreme Court held that psychological or psychiatric evaluation of children in custody, visitation and parental access disputes should not be ordered routinely and that courts must adopt a child-centric approach guided by the principles of minimum intrusion and psychological safety. The matter arose from a custody dispute between the parents, in which the child was also an alleged victim of sexual abuse under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). While modifying directions issued by the Bombay High Court regarding evaluation of the child by a panel of experts, the Court emphasised that the welfare, dignity, emotional security and psychological well-being of the child must remain the paramount consideration in all such proceedings.

Brief facts:

The case stemmed from a custody and visitation dispute between estranged parents, coupled with allegations that the child had been subjected to sexual abuse by the father, leading to proceedings under the POCSO Act. Multiple proceedings concerning divorce, domestic violence, custody, visitation rights and criminal allegations were pending between the parties. During the course of these disputes, the father sought the appointment of an independent expert to conduct a psychological evaluation of the child and both parents.

While the Family Court declined the request, taking note of the pending POCSO allegations and the fact that the child was already undergoing therapy with a qualified psychologist, the High Court later directed psychological evaluation through an independent expert and subsequently permitted assessment by a panel of experts. Aggrieved by the constitution of a four-member panel and apprehending that repeated evaluations could expose the child to further trauma and emotional distress, the mother approached the Apex Court.

Contentions of the Appellant:

The Appellant contended that the High Court's directions were contrary to the child's welfare and psychological well-being, particularly as the child was an alleged victim under the POCSO Act. The counsel argued that evaluation by a panel of experts would subject the child to repeated and intrusive assessments, increasing the risk of re-traumatisation and secondary victimisation. The Appellant further submitted that the child had already interacted with multiple professionals during the proceedings and that any further evaluation was unnecessary. The counsel further contended that the proposed exercise risked turning a welfare-oriented process into an adversarial mechanism aimed at undermining the allegations of sexual abuse.

Contentions of the Respondent:

The Respondent defended the High Court's directions, contending that expert evaluation was necessary to assess the child's psychological condition and assist the courts in determining issues relating to custody, access and visitation. The counsel argued that the allegations under the POCSO Act were false and stemmed from matrimonial disputes between the parties. The Respondent further submitted that the proposed evaluation was intended solely to safeguard the child's welfare and facilitate restoration of her relationship with the father through qualified professionals.

Observation of the Court:

The Division Bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh observed, “where a child who is already undergoing certain trauma because of the rupture in the family and deprived of undivided love, affection and care from both the parents, and when there is also allegation of sexual abuse by her own father, if she is going to be subjected to further investigation at the hands of psychologists as proposed to be done by the impugned orders, we must seriously examine as to whether such a course of action by virtue of the judicial orders may lead to 'secondary victimisation' and 're-traumatisation', would be desirable or not. In short, will this judicially ordained process be in the best interest of the child?”

The Court observed, “the POCSO Act lies not merely in the creation of substantive offences relating to child sexual abuse, but equally in its recognition that the justice delivery process itself must remain child-sensitive, trauma-informed, child friendly and protective of the psychological well-being of the child victim. The enactment represents a conscious legislative departure from the conventional adversarial criminal procedures insofar as children are concerned. The statute proceeds on the foundational premise that a child who has allegedly suffered sexual abuse must not be exposed to processes capable of causing further emotional harm, humiliation or secondary victimisation."

The Bench held, "Emotional stability, psychological security, dignity and mental health constitute vital components of the concept of the welfare of the child. Consequently, any such factors which may impede and seen to be disruptive to the welfare of the child must be abjured while considering the welfare of the child. Any process which leads to the detriment of the welfare of the child must be avoided by the court while passing orders relating to the custody/visitation rights claimed by any of the parents. The court is required to remain responsive not merely to the legal consequences but also the impact which the judicially ordained process may have upon the welfare of the child."

The Court further emphasised that "Courts must remain alive to the distinction between therapeutic engagement intended to support healing and recovery of the child, and repeated evaluation as part of adversarial processes undertaken in aid of litigation to vindicate the claim of the rival parties, which may prove to be highly stressful causing mental and emotional strain on the child. While the former may, in appropriate cases, aid the emotional rehabilitation of the child, the latter carries the potential of converting the child into an object of continuous forensic scrutiny to satisfy the claim of the parents and an unintended casualty in the legal tug of war between two bickering parents."

The Bench observed, "The Court, while exercising jurisdiction in such matters, rather, exercising parens patriae jurisdiction, bears an independent and overriding obligation to protect the dignity and welfare of the child irrespective of the competing positions adopted by the parties. Consequently, even where one or both parents seek evaluative or therapeutic intervention, the Court must independently assess whether the proposed process is genuinely necessary, proportionate and conducive to the welfare of the child."

The Court held, "The number of professionals interacting with the child, the frequency of sessions, the context in which such evaluation is undertaken, and the surrounding adversarial environment may collectively influence the emotional experience of the child. A process which may appear clinically benign in abstraction may nevertheless become psychologically stressful when situated within ongoing contentious litigation involving allegations of abuse by one of the parents."

Principles Laid Down by the Supreme Court

The Apex Court laid down the following broad principles to guide courts dealing with requests for psychological or psychiatric evaluation of children in custody, visitation and parental access disputes:

The welfare, emotional security, dignity and psychological well-being of the child must remain the paramount consideration.
Psychological or psychiatric evaluation should not be ordered routinely merely because custody or visitation issues arise.
Courts must record specific reasons showing why an evaluation is necessary and why less intrusive alternatives are insufficient.
The principles of minimum intrusion and minimum exposure must guide all interactions with children.
Repeated, overlapping or multi-layered evaluations should ordinarily be avoided.
Where evaluation is necessary, it should ordinarily be conducted by a single independent expert with expertise in child psychology and trauma.
Appointment of a panel of experts should remain an exception and be resorted to only where indispensable.
Experts conducting evaluations must be independent, neutral and free from influence of either litigating party.
The evaluation process must remain child-centric and should not become an adversarial evidence-gathering exercise.
Courts must remain conscious of the risk of re-traumatisation arising from repeated narration of traumatic experiences.
Any evaluation must conform to the child-friendly safeguards embodied in the POCSO Act.
The child's identity, disclosures, therapy records and evaluation reports must remain strictly confidential.
Audio-video recordings, session notes and therapeutic material should not ordinarily be made available to parties.
Evaluative reports should remain confined to the purpose for which the evaluation was ordered and should not determine criminal culpability.
Existing therapeutic environments should ordinarily not be disrupted if the child is already under the care of a qualified professional.
Virtual or hybrid evaluations must be accompanied by safeguards relating to privacy, emotional safety and freedom from external influence.
Courts must retain continuing supervisory control over the evaluation process and may modify or discontinue it if necessary.
Psychological assessment of the child may be undertaken from time to time if required as the child grows.
Courts should consider obtaining psychological assessment reports of both parents as their mental condition may directly affect the child's welfare.
Expert assistance regarding the mental health of both the child and the parents should be used as a tool to craft appropriate custody and visitation arrangements.

The decision of the Court:

In light of the foregoing discussion, the Apex Court held that the directions issued by the High Court permitting evaluation of the child through a 4 member panel of experts did not adequately satisfy the requirements of necessity, proportionality, institutional neutrality, and minimum intrusion. The Court accordingly modified the impugned orders and directed that a court-appointed psychologist should first assess the psychological condition of both parents and interact with the child's existing treating psychologist before the Family Court decides whether any further psychological assessment of the child is necessary.

Case Title: Sheetal Vasant Thakur Vs. Chirag Arora

Case No.: Special Leave Petition (Civil) Nos.18701-18702 of 2024

Coram: Hon'ble Justice Sanjay Karol, Hon’ble Justice Nongmeikapam Kotiswar Singh

Advocate for the Petitioner: Sr. Adv. Shobha Gupta, AOR Dhiraj Abraham Philip, Adv. Febin Mathew Varghese, Adv. Lija Merin John, Adv. Soyarchon Khangrah, Adv. Namrata Mohapatra, Adv. Achalika Ahuja

Advocate for the Respondent: AOR James Bedi, Adv. Shahrukh Alam, Adv. Sarthak Bhatia, Adv. Sonali Jain, Adv. Chaitanya Madhav

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