Can Report of Child-Counsellor Be Relied to Determine Custody/Guardianship Issues? SC Answers [Read Judgment]

Justice Abhay Manohar Sapre and Justice Uday Umesh Lalit were considering an appeal against a Delhi High Court order that had recalled its earlier order that held that "the reports of the mediator as also of the counsellor concerning the behavior and attitude of the child, especially when the mediation process has failed would not fall within the bar of confidentiality". The High court, while allowing the review petition, had also observed that there is no exception to mediation confidentiality in child custody matters and disputes.

In the appeal, reliance was placed on Family Courts (Procedure) Rules, 1992, framed by Delhi High Court which provides that the counsellor will submit to the Judge a report relating to the home environment of the parties concerned, their personalities and their relationship with their child and/or children in order to assist the Judge in deciding the question of the custody or guardianship of any child or children of the marriage.

Taking note of the relevant statutory provisions as well as aforesaid rule, the bench observed that, though complete adherence to confidentiality would absolutely be correct in normal matters where the role of the court is purely of an adjudicator, such an approach may not essentially be conducive when the court is called upon and expected to discharge its role in the capacity as parens patriae and is concerned with the welfare of a child. Explain the intent of Rule, the bench said:

"All custody and guardianship issues are resolved on the touchstone or parameter of "best interest of the child". In custody and guardianship disputes between two parties, a minor child is in a peculiar situation. At times, both sides are busy fighting legal battles and the court is called upon in parens patriae to decide what is in the best interest of the child. In order to reach correct conclusion, the court may interview the child or may depend upon the analysis of an expert who may spend some more time with the child and gauge the upbringing, personality, desires or mental frame of the child and render assistance to the court. It is precisely for this reason that the element of confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain extent, is departed from in Sub-Rule (viii) of Rule 8 of the Rules."

The court, emphasizing that while determining child custody issues paramount consideration is welfare of the child, further observed:

"Statements made by the parents during the course of mediation may not be relied upon on the ground of confidentiality but natural responses and statements made by the minor to the Counsellor would certainly afford a chance to decide what is in the best interest of the child. A child may respond naturally and spontaneously in its interactions with the Counsellor, who is professionally trained to make the child feel comfortable. Record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction. If during such interaction issues or aspects concerning welfare of a child are noticed, there is no reason why the Court be deprived of access to such aspects. As held by this Court in various judgments, the paramount consideration ought to be to see what is in the best interest of the child."

Setting aside the High court order, the bench further added:

"In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give report, inter alia, relating to home environment of the parties concerned, their personalities and their relationship with the child and/or children in order to assist the Judge in deciding the question of guardianship of any child or children. The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice. This departure from confidentially is consistent with the underlined theme of the Act in general and Section 12 in particular. Once there is a clear exception in favour of categories stated therein, principles in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution regarding confidentiality cannot be imported. The effect of such exception cannot be diluted or nullified."

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