SC says child victims shouldn’t face routine psychological tests, issues guidelines

COurts should non prescribe psychological test of baby victims as a thing of routine in custody battles and sexual abuse cases, as such orders can re-traumatise a disturbed child, the Supreme Court has said, and issued directions to be followed in such matters.A bench of justices Sanjay Karol and N Kotiswar Singh on Thursday asked courts to adopt a cautious and child-centric approach that prioritises a child’s dignity, emotional security, and psychological well-being over the interests of litigating parents. “Since the psychological growth and welfare of the child is closely intertwined with the psychological condition of the parents, it would be desirable for the courts to call for psychological assessment reports of both the parents, as it will aid in passing appropriate orders in respect of the welfare of the child.”The court passed the order after a woman from Maharashtra challenged two Bombay high court orders (2023), subjecting her 10-year-old daughter to a psychological assessment at the instance of her father, accused of sexually abusing the child when she was under three. The US-based father denied the allegation and blamed his wife for trying to alienate him from the child. The mother said that the child had gone through the trauma of recording her statement in the criminal proceedings under the Protection of Children Against Sexual Offences (POCSO) Act against her father. She argued that subjecting her to assessments would amount to “re-traumatisation”.The bench agreed with the mother’s concern. “In matters involving custodial rights of the children in the context of bitterly contested disputes between the parents, the courts have to adopt a very cautious approach before passing orders which may have the potential of aggravating the trauma of an already disturbed child.”The bench modified one of the high court’s orders, observing that the order did not consider the child’s welfare. It added that the high court did not record why a panel of experts was to examine the child rather than one independent expert.The bench raised doubts over neutrality as the child’s father mostly suggested the experts, including those based abroad. It said the high court failed to consider the impact of subjecting the child to hybrid interaction with experts.Justice Singh, who wrote the judgment, said the justice delivery system must guard against any process that effectively prioritises adversarial claims of litigating parties over a child’s emotional safety and psychological integrity, and compromises their welfare.The court noted the nature of the case under the POCSO Act and said that the well-established norms require “minimum intrusion and minimum exposure” of child victims to such a process. “Judicial procedures themselves must, therefore, conform to standards of sensitivity, minimum intrusion, and psychological safety of the child.”The court referred the matter back to a Maharashtra family court, directing psychological examination of the parents first. It added that the psychologist treating the child would then submit a report to the concerned court. The bench said the family court will then determine if the child needs a psychological assessment.It cited the complexities the case presented and the need for a child-centric approach, consistent with the constitutional obligation of courts to preserve the dignity, emotional security, and psychological well-being of child victims participating in judicial processes.The bench asked courts dealing with POCSO Act cases to consider the welfare, emotional security, dignity, and psychological well-being of the children. “Psychological or psychiatric evaluation of a child victim shall not be directed as a matter of routine merely because issues of custody, visitation, or parental access arise between litigating parents/relatives.” The bench said that courts shall provide reasons justifying the necessity, purpose, and relevance of the proposed exercise if such an order is to be passed.“Courts shall adopt the principle of minimum intrusion and minimum exposure while directing psychological interaction with child victims,” the bench said. It said ordinarily, one independent and court-appointed child psychologist should conduct it. “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 the experts should be independent, neutral, and the process must be child-centric and welfare-oriented, and not adversarial, investigative, or evidence-gathering exercise. The bench said the proceedings and outcomes of such an exercise should be kept strictly confidential.The bench said courts must ensure safeguards for privacy, emotional safety, absence of external influence, and overall suitability, considering a child’s age and psychological condition. It said its guidelines are neither “exhaustive” nor “inflexible,” and the courts should decide the proper course on a case-by-case basis with the assistance of experts as the case may warrant.