Courts Must Order Psychological Assessment Of Child Only If Necessary; Minimum Intrusion Should Be Norm: Supreme Court
Here's a judgment about protecting children inside the courtroom itself. The Supreme Court has said courts should order psychological assessment of a child in custody or visitation disputes only when truly necessary, and minimum intrusion into the child's life must be the norm. The case involved a minor who is also an alleged victim of sexual abuse. The Court leaned on the POCSO Act, 2012, which says an abused child must not face processes causing secondary victimisation, and on the parens patriae idea, where the court acts as the child's guardian. So for your CLAT prep, just remember minimum intrusion, the POCSO Act 2012, and parens patriae.
The Supreme Court today observed that psychological assessments of children involved in custody, visitation and parental access disputes should be ordered only when necessary and "minimum intrusion" into a child's life should be the norm, particularly where the child is an alleged victim of sexual abuse.
A bench ofJustice Sanjay Karol and Justice N Kotiswar Singhmade the observations while modifying orders of the Bombay High Court that had directed the constitution of a panel of psychologists and experts to evaluate a minor child who is also an alleged victim of sexual abuse by her father.
The Court clarified that it was not dealing with the merits of the sexual abuse allegations. However, while examining the issue of psychological evaluation, it referred to the objectives of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), which proceeds on the fundamental premise that a child who has suffered sexual abuse should not be exposed to processes capable of causing further emotional harm or secondary victimisation.
The Supreme Court stressed that a court, acting as parens patriae for the child, must be especially careful while directing any form of examination of a minor.
“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 victimization. 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”, the Court observed.
The Court referred to reports prepared by experts from the Department of Psychiatric Social Work and the Department of Child and Adolescent Psychiatry at the National Institute of Mental Health and Neurosciences (NIMHANS). The reports highlighted issues affecting both children and parents in custody disputes, including parent-child relationships, parental dynamics, parental mental health concerns, malicious acts by parents, adjustment to changes in a child's life, school-related issues and child mental health concerns.
The Court observed that questions concerning child custody, visitation rights and parental access cannot be viewed solely from the perspective of the child and must instead be examined holistically, taking into account the conduct and mental condition of the parents as well.
In the case before it, the Supreme Court modified orders of the Bombay High Court that had directed the constitution of a panel of psychologists and experts to evaluate the child.
Instead, the Court directed the Family Court to first appoint a psychologist to assess the mental and psychological condition of both parents, particularly the mother, in whose custody the child presently resides. The court-appointed psychologist will then interact with the psychologist currently treating the child and submit a report to the Family Court.
The Supreme Court directed that the Family Court should decide, after considering that report, whether any direct psychological assessment of the child is necessary. If such assessment is found unnecessary, it should not be conducted.
If it is considered necessary, it must be undertaken by an independent child psychologist in consultation with the child's treating psychologist and with the minimum interaction necessary so as not to adversely affect the child's mental condition.
The Court also directed the Family Court 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.
Further, the Court directed the parties to keep the Family Court informed about the status of the POCSO proceedings pending against the father, observing that those proceedings could have a significant bearing on decisions relating to custody and visitation rights.
The matter has been remitted to the Family Court for fresh consideration in light of the Supreme Court's observations and directions.
The Court also observed that courts must remain alert to concerns regarding parental alienation syndrome and false memory creation. While noting that the child is presently in the safe custody of her mother, the Court said the child should not be exposed to influences that may foster such syndromes against the father. The Court stated that information on this aspect may be obtained through reports from the psychologist treating the child without necessarily requiring direct interaction with the child on the issue.
The Court also clarified that its observations in the present judgment should not be treated as exhaustive or inflexible guidelines applicable in every case. It emphasised that disputes involving the psychological condition, emotional responses and welfare needs of children do not admit rigid formulas or uniform standards. The Court observed that emotional responses vary from child to child and may also change over time in the case of the same child.
Case Title – Sheetal Vasant Thakur v. Chirag Arora