Psychological Tests for Children in Custody Cases Only When Necessary

Source: Supreme Court

Why in News? 

A Division Bench of Justice Sanjay Karol and Justice N Kotiswar Singh of the Supreme Court of India issued detailed guidelines governing the psychological assessment of children involved in parental custody disputes. The Court held that family courts must not subject children to psychological evaluation unless it is strictly necessary, and that the psychological condition of the parents must be assessed first before any such evaluation of the child is ordered. The Court also directed that if evaluation of the child is found unnecessary or undesirable, it must not be conducted.

What was the Background of the Case? 

• The matter arose from a custody dispute in which the Bombay High Court had directed the psychological evaluation of a minor.  
• A panel of experts had been constituted on the High Court's orders to evaluate both the child and the parents, with the aim of facilitating restoration of contact between the father and the minor. 
• The High Court passed orders to this effect on April 27, 2023 and December 7, 2023.  
• These orders were challenged before the Supreme Court, which modified both orders and remitted the case to the family court for fresh consideration in light of the guidelines now issued.

What were the Court's Observations? 

• On assessment of parents before assessment of the child: The Court held that family courts must first appoint a psychologist to assess the psychological condition of both parents — particularly the parent currently having custody of the child — before deciding whether any psychological evaluation of the child is necessary. The evaluation of the child is to be ordered only if the psychologist's report on the parents indicates its necessity. 
• On dispensing with child assessment: The Court directed that no psychological assessment of the child should be conducted if the family court, on the basis of the psychologist's report regarding the parents, finds such assessment to be unnecessary or undesirable. 
• On the manner of child evaluation: Where evaluation of the child is found necessary, it must be carried out by an independent child psychologist, in consultation with any psychologist already treating the child. The assessment must involve minimal interaction so as not to disturb the child's mental condition. 
• On the evolving nature of a child's psychological needs: The Court emphasised that family courts must remain conscious that a child's psychological needs change with age and may require periodic review and assessment. 
• On parental alienation and false memory: The Court directed family courts to examine concerns such as parental alienation and the risk of false memory creation, and to ensure that the child is not exposed to any influences that may foster such tendencies. 
• On the continuing nature of custody disputes: Highlighting its role as parens patriae, the Court observed that custody and visitation disputes involving children are inherently dynamic and constitute a continuing cause of action. Parents are at liberty to seek modification of custody or visitation arrangements as circumstances change over time. 
• On pending POCSO proceedings: The Court directed that parties must apprise the family court of the status of any proceedings pending under the Protection of Children from Sexual Offences Act (POCSO Act) against the respondent, as such proceedings may significantly affect decisions concerning visitation and custody rights. 
• On expert material relied upon: The Court's reasoning drew on a report by the National Institute of Mental Health and Neurosciences (NIMHANS) and the Department of Child and Adolescent Psychiatry, which highlighted the complex psychological challenges faced by children caught in parental disputes — including strained parent-child relationships, parental conflict, mental health concerns, maladjustment, school-related issues, and instances of malicious conduct by parents.

What is the Doctrine of Parens Patriae? 

The doctrine of parens patriae (Latin: "parent of the nation") refers to the inherent power and authority of the State to act as a guardian for those who are unable to protect their own interests, including minors and persons of unsound mind. 

Application in Custody Matters: 

• In child custody disputes, courts exercise jurisdiction as parens patriae, meaning the welfare and best interests of the child are paramount and override the competing claims of either parent. 
• Indian courts have consistently held that the welfare of the child is the first and paramount consideration in custody matters, not the legal rights of the parents. 

Statutory Basis: 

• The Guardian and Wards Act, 1890, particularly Section 17, requires a court appointing a guardian to be guided primarily by the welfare of the minor. 
• Courts exercising jurisdiction under the Hindu Minority and Guardianship Act, 1956 are similarly bound by the welfare principle. 

Key Principles: 

• The State, through its courts, may intervene in private family arrangements where the welfare of a minor is at stake. 
• Custody and visitation orders are not final and can be modified as the circumstances of the child and parents evolve over time. 
• The child's physical, emotional, and psychological well-being are all relevant considerations in determining welfare.