Noting that children cannot be treated as “mere evidentiary objects”, the Supreme Court on Thursday said their psychological or psychiatric evaluation should not be ordered routinely to satisfy the competing claims of estranged parents involved in bitter custody-and-visitation disputes.
A bench of Justice Sanjay Karol and Justice N Kotiswar Singh issued guidelines for cases involving a psychological or psychiatric evaluation of minor children in proceedings arising out of custody, visitation or parental-access disputes.
The top court modified a Bombay High Court order and set aside key directions that had allowed a four-member panel of psychologists and experts to evaluate a girl whose father is facing allegations under the Protection of Children from Sexual Offences (POCSO) Act.
Prioritising the child’s wellbeing over standard legal procedures, the verdict recognised that frequent or unnecessary testing can exacerbate the emotional strain on children already coping with the separation or conflict of their parents.
“We have also, in that context, examined the provisions of the POCSO Act, which proceeds on the fundamental premise that child who has allegedly suffered sexual abuse must not be exposed to processes capable of causing further emotional harm, immolation, or secondary victimisation. Keeping that in mind, we have felt that minimum intrusion to the child’s life should be the norm as acting as parens patriae for the child, we have to be more careful when we direct any kind of examination of the child,” it said.
Now, before ordering a psychological assessment of a child, family courts must first appoint an expert to assess the mental state of both parents, particularly the parent who currently has custody and if the expert opines that the child’s evaluation is unnecessary or potentially harmful, it must not be conducted.
Writing the judgment for the bench, Justice Singh also directed family courts to periodically review the need for any psychological assessment, noting that a growing child’s psychological needs may evolve over time. The parties were granted liberty to seek modification of custody and visitation arrangements as circumstances change.
The top court introduced safeguards to ensure transparency and accountability as family courts are now mandated to have information about any pending proceedings under the POCSO Act involving the parties, affecting decisions on child custody and visitation rights.
The court took note of expert opinion of National Institute of Mental Health and Neurosciences (NIMHANS) on mental health challenges and maladjustment in children due to parental conflict.
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