Summary
The Court set aside a review judgment excluding mediator and counsellor reports in a child-custody matter. Review could not substitute a fresh appellate assessment for the earlier decision. While parents’ settlement communications remained confidential, the child’s natural responses and a counsellor’s welfare assessment could assist the court’s protective jurisdiction. The counsellor’s involvement was known to the parties and expressly accepted by the High Court, bringing it within the broad assistance power.
Issues
- Whether the High Court exceeded review jurisdiction by revisiting its earlier decision.
- Whether confidentiality excluded the reports concerning the child’s welfare.
- Whether the counsellor’s engagement was impermissible because she was not appointed under Section 6.
Provisions considered
- Order XLVII Rule 1, Code of Civil Procedure, 1908Review required a self-evident error; a fresh reasoned reconsideration belonged to appeal. (¶¶ 14, 15, 16)
- Sections 6, 9 and 12, Family Courts Act, 1984Recognised broad power to secure expert assistance for the child’s welfare and upheld the counsellor’s involvement with the High Court’s acceptance. (¶¶ 18, 25, 26, 28, 29)
- Rule 8, particularly sub-rule (viii), Family Courts (Procedure) Rules, 1992 (Delhi)Applied the custody and guardianship reporting exception to ordinary confidentiality. (¶¶ 19, 23, 24, 25, 26, 28)
- Sections 75 and 81, Arbitration and Conciliation Act, 1996Considered general conciliation confidentiality while preserving protection for the parents’ settlement statements. (¶¶ 20, 22, 24, 27)
Held
- An error requiring a process of reasoning is not an error apparent. Even assuming the earlier decision wrongly appreciated facts or law, the review court could not sit in appeal over it; review was an improper remedy here. (¶¶ 14, 15, 16)
- Confidentiality encourages candid settlement discussions and ordinarily prevents later use of parties’ mediation statements. That principle remains applicable to the parents’ settlement communications. (¶¶ 22, 24, 27)
- Custody and guardianship involve the court’s parens patriae responsibility and the child’s paramount interests. Rule 8(viii) permits a counsellor’s report on home environment, personalities and the relationship with the child to assist the court. (¶¶ 25, 26, 27, 28)
- A child’s natural and spontaneous responses to a trained counsellor can supply material welfare information. General mediation-confidentiality norms cannot nullify the specific reporting exception. (¶¶ 27, 28)
- The counsellor had been appointed by a High Court committee and her engagement was known to the parties and expressly accepted in the court’s orders. The width of Section 12 did not justify excluding her report merely because she was not appointed under Section 6. (¶¶ 29, 30)
Result
Appeal allowed; review judgment of 11 December 2017 set aside and earlier judgment of 17 February 2017 restored, permitting consideration of the reports in this case. No order as to costs.