The Supreme Court bench comprising of Justice U.U. Lalit and Justice A.M. Sapre held that the report of a child-counsellor does not fall under the ambit of confidentiality and can be used by the Family Courts in determining guardianship/custodial issues. The Appellant filed the appeal challenging the order passed by the Delhi High Court that recalled its earlier order stating 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”.
In its submission before the Bench, the following points were argued by the counsel for the parties concerned as follows:
For the Appellant:
(i). the High Court exceeded the scope of review jurisdiction as if it was sitting in appeal over the earlier judgment; that in terms of law laid down by this court an error which is not self-evident and which is required to be detected by a process of reasoning cannot be termed as error apparent on the face of the record;
(ii). the report of the Counsellor was not hit by confidentiality as it merely recorded the interaction of the Counsellor with the child and did not record any information or submission by parties to the lis.
For the Respondent:
(i). mediation reports are part of confidential proceedings and cannot be permitted to be used in court proceedings for which reliance was placed on various statutory provisions;
(ii) the Counsellor was not appointed under Section 6 of the Family Courts Act;
(iii) exception under Rule 8 (viii) to (xiv) of the Family Court Rules cannot be read as exception to Rules 20 and 23 of the Mediation Rules;
(iv) the mediation reports given by the Counsellor-in mediation did not fall within the exceptions provided in rule 8;
(v) there was no waiver of confidentiality and the respondent had objected to the use of the reports at the first instance; (vi) the earlier order being based on a mis conception of law, the High Court was right in exercising review jurisdiction.
After hearing the submissions of the parties concerned, the Bench framed the following issues in concern:
- a) Whether the High Court was justified in exercising review jurisdiction and setting aside the earlier judgment and
- b) Whether the High Court was correct in holding that the reports of the Mediator and the Counsellor in this case were part of confidential proceedings and no party could be permitted to use the same in any court proceedings or could place any reliance on such reports.
On the first issue, the Bench held that review was not the proper remedy and the High Court had erred in entertaining the review petition as “the logical course in the circumstances would be to set aside the judgment under appeal and permit the respondent to challenge the judgment dated 17.02.2017”
On the second issue, the Bench observed that the report of the Counsellor was of the paramount importance and held that:
“28. 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. In our view, the High Court considered the matter in correct perspective in paragraphs 17 to 20 of its judgment dated 07.02.2017.”
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