The Supreme Court on Thursday issued detailed guidelines to guide the assessment of children caught in custody battles between their parents, warning family courts not to subject such children to psychological evaluation unless necessary.
A Bench consisting of Justice Sanjay Karol and Justice N Kotiswar Singh stressed that such measures should be used sparingly.
The Bench held that courts must first assess the psychological condition of the parents before considering any evaluation of the child.
"Family Courts must first appoint a psychologist to assess the psychological condition of both parents, particularly the parent having present custody of the child, before deciding whether any psychological assessment of the child is required," said the Court.
The Bench further directed that if such an evaluation of children is found unnecessary or undesirable, it should not be conducted.
"No psychological assessment of the child should be conducted if the Family Court, based on the psychologist's report, finds such assessment unnecessary or undesirable," said the Court.
The ruling came in a plea challenging orders passed by the Bombay High Court directing the psychological evaluation of a minor in a custody dispute. A panel of experts had earlier been constituted on the Court's orders to evaluate the child and the parents, to facilitate restoration of contact between the father and the minor.
The top court today modified the High Court’s orders dated April 27, 2023 and December 7, 2023. The case has been remitted back to the family court for a fresh consideration in light of guidelines now issued by the Supreme Court in such matters.
In its ruling, the top court has held that where evaluation of the child is required, it must be undertaken by an independent child psychologist, in consultation with any psychologist already treating the child, and with minimal interaction so as not to disturb the child’s mental condition.
The Court also emphasised that courts must remain mindful that a child’s psychological needs evolve with age.
"Family Courts must remain conscious that a child's psychological needs change with age and may require periodic review and assessment," said the Court.
The Court also directed family courts to examine concerns such as parental alienation and the risk of false memory creation, while ensuring that the child is not exposed to influences that may foster such tendencies.
Highlighting its role as parens patriae, the Court noted that custody and visitation disputes involving children are inherently dynamic and constitute a continuing cause of action. It clarified that parents are at liberty to seek modification of custody or visitation arrangements as circumstances change over time.
It also directed parties to inform family courts about any related pending proceedings under the Protection of Children from Sexual Offences Act (POCSO).
"Parties must apprise the family court of the status of proceedings pending under the POCSO Act against the respondent, as those proceedings may significantly affect decisions concerning visitation and custody rights," directed the Court.
The Court’s reasoning drew on expert material, including a report by the National Institute of Mental Health and Neurosciences (NIMHANS) and the Department of Child and Adolescent Psychiatry.
These reports had highlighted the complex psychological challenges faced by children caught in parental disputes. These include strained child-parent relationships, parental conflict, mental health concerns, maladjustment, school-related issues, and instances of malicious conduct by parents.
"Such studies reflect both the mental health of children involved in parental disputes and the psychological condition of the disputing parents, providing an important backdrop for judicial decision-making," observed the Court.
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