Psychological evaluation of children shouldn’t be ordered routinely: SC

In a significant verdict, the Supreme Court held on Thursday that children cannot be treated as “mere evidentiary objects” and that 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 Justices Sanjay Karol and Nongmeikapam Kotiswar Singh issued a slew of directions for dealing with cases involving a psychological or psychiatric evaluation of minor children in proceedings arising out of custody, visitation or parental-access disputes.

The directions were issued by the bench in a verdict that 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. Justice Singh, who authored the 65-page verdict, quoted Nelson Mandela, who had said, “There can be no keener revelation of a society’s soul than the way in which it treats its children.”

“In all proceedings, more particularly, involving a minor child alleged to be a victim under the POCSO Act, the paramount consideration shall always remain the welfare, emotional security, dignity and psychological wellbeing of the child,” the court said. In one of the directions, the bench said a psychological evaluation of a child victim shall not be directed as a matter of routine merely because issues of custody, visitation or parental access have arisen between the litigating parents or relatives.

“Before directing any such evaluative process concerning the child, the court shall record specific reasons demonstrating the necessity of such evaluation, the purpose sought to be achieved, the relevance of the proposed exercise and the reasons why less-intrusive alternatives would not sufficiently subserve the interests of the child,” it said.

The verdict said courts must adopt the “principle of minimum intrusion and minimum exposure” while directing a psychological interaction with child victims.

“Repeated, overlapping or multi-layered psychological evaluations of a child victim should ordinarily be avoided unless compelling circumstances exist and reasons are specifically recorded in writing,” it said.

The verdict said where a psychological evaluation is considered necessary, ordinarily, the same should be conducted by an independent and court-appointed child psychologist or psychiatrist. “The constitution of a panel of experts should remain an exceptional course, to be adopted only where the court is satisfied that the peculiar facts of the case render such a course indispensable,” it said, adding that the experts must be independent and neutral.

“The evaluative process shall remain child-centric and welfare-oriented and shall not assume the character of an adversarial, investigative or evidence-gathering exercise,” it said.

The identity of the child, disclosures made during the evaluation, therapeutic records and evaluative reports shall remain strictly confidential, the court said.

“Audio or video recordings, session notes and therapeutic material generated during evaluation shall not ordinarily be made directly accessible to parties...,” it added.

The court, however, clarified that the observations were not to be understood as exhaustive or inflexible guidelines to be applied mechanically in every case.

The dispute arose between the mother and the father of a girl child. The mother had alleged that during their stay in the United States between 2018 and 2019, her husband had subjected the girl to sexual abuse.

After they returned to India, a case under the POCSO Act was lodged against the father.

The father denied the allegations, claiming that those were fabricated due to matrimonial discord, and said the child was suffering from “Parental Alienation Syndrome” (PAS), a theory where one parent “tutors” a child to hate the other.

To facilitate a “reconnection” with his daughter, the high court had ordered a multi-layered evaluation by a panel of four psychologists, including US-based experts.

Dealing with the facts of the case, the bench set aside the high court’s “panel-of-experts” approach.

“It is by now well-settled that in matters concerning custody, access, the rights and claims of litigating parents remain subservient to the paramount consideration of the welfare and best interest of the child. The said principle acquires even greater significance where the child is an alleged victim under the POCSO Act, and the judicial process itself carries the potential of exposing the child to further trauma or emotional harm,” it said.

The top court said emotional stability, psychological security, dignity and mental health constitute vital components of the concept of a child’s welfare.

It noted that subjecting a child, who is already an alleged victim of trauma, to repeated, intrusive questioning by multiple experts amounts to “secondary victimisation”.

The verdict emphasised that the justice-delivery system must remain “trauma-informed” and “child-sensitive”.

It cautioned against the premature use of labels like PAS and said PAS is not a “diagnosable syndrome” but a question of fact regarding “alienating behaviour” that must be proven with specific evidence, not imputed routinely.

It also directed that instead of focusing solely on the child, the family court should first evaluate the mental and psychological conditions of the parents, and this would provide a better context for visitation rights, without further traumatising the minor.

“The family court will appoint a psychologist to interact with both the parents to make an assessment of their present mental/psychological conditions, more particularly of the mother under whom the child is presently in custody,” the bench said.

The psychologist, thereafter, will interact with the child psychologist who is currently providing treatment to the girl and then ascertain her current psychological status and condition, it added.

After interacting with the child psychologist, the court-appointed psychologist shall submit a report to the family court, the bench said.

“The family court, after considering the report submitted by the court-appointed psychologist relating to the psychological condition of the parents and also about the child based on interaction with the child psychologist treating the child, will pass an appropriate order as regards the desirability of conducting any psychological assessment of the child at this stage,” it said.