Perry Kansagra v. Smriti Madan Kansagra: Supreme Court on Child Counsellor Reports, Mediation Confidentiality & Custody

1. Why Perry Kansagra matters in modern child-custody litigation

Perry Kansagra v. Smriti Madan Kansagra is important because it sits at the intersection of two values that courts ordinarily protect with considerable seriousness: the confidentiality of mediation and the welfare of a child. Mediation depends on candour. Parties are more likely to discuss settlement, acknowledge weaknesses, make concessions and explore practical arrangements when they know that failed settlement negotiations will not later be used against them in adversarial proceedings. Child-custody adjudication, however, imposes a different and independent obligation on the court. A court deciding custody does not merely referee a private dispute between two adults. It acts in a protective jurisdiction and must obtain reliable information about the child’s emotional, educational, physical and psychological welfare.

The case therefore raised a difficult question. If a child interacts with a counsellor during a court-connected mediation process, can the resulting observations be excluded simply because they arose in the setting of mediation? Or does the child’s welfare justify the court’s access to professional observations that are materially different from the parents’ confidential settlement communications? The Supreme Court answered by drawing an important distinction. The confidentiality of statements made by the adult parties during settlement efforts remains fundamental, but the child’s natural responses and professionally recorded welfare observations cannot automatically be locked away where they may materially assist the court in deciding custody.

The judgment is especially useful in Delhi because custody matters frequently move through Family Courts, court-annexed mediation centres, counsellors, child-interaction sessions, welfare experts and appellate proceedings before the Delhi High Court. Lawyers must therefore understand not only what evidence can be filed but also what material may be privileged, what material is generated for a different purpose, what the Family Courts Act permits and what the court can consider when the child itself has been interviewed in a therapeutic or counselling environment.

2. Factual background and international dimension

The parties had an international family background. The appellant father held Kenyan and British citizenship, while the respondent mother was an Indian citizen. They married in New Delhi in July 2007. After the marriage, the mother moved to Nairobi and lived there with the father. Their son was born in New Delhi, and after delivery the mother returned to Nairobi with the child. The child consequently had a life connected to more than one country and held Kenyan and British passports.

In March 2012, the family travelled to New Delhi. According to the father’s case, return tickets to Nairobi had been booked for June 2012. While the parties were in India, matrimonial relations deteriorated significantly. The mother filed a civil suit before the Delhi High Court seeking, among other reliefs, an injunction preventing the father from removing the child from her custody. The litigation thereafter developed into a sustained custody dispute.

The father later filed a guardianship petition before the Family Court at Saket, New Delhi. He sought declaration as legal guardian and permanent custody of the child. During the period when proceedings remained pending, courts made visitation orders so that the father and paternal grandparents could meet the child. The record reflected a continuing effort to preserve contact between the child and the paternal family despite the high-conflict litigation between the parents.

This background is significant for two reasons. First, the litigation was not a one-time emergency application. It was a long-running custody case requiring ongoing judicial management. Second, the international aspects made the child’s relationships, identity, travel, family network and contact with relatives particularly important. These features reinforced the need for reliable information concerning the child’s actual comfort level and emotional responses.

3. The Family Court and visitation history

The Delhi High Court had initially passed visitation orders permitting the father and paternal grandparents to meet the child for specified periods. The father asserted that he travelled from Nairobi to Delhi regularly in order to exercise this contact. Once the guardianship petition became the central proceeding, the earlier civil suit was disposed of and the parties were left to pursue child-related grievances before the Family Court.

The Family Court later modified visitation arrangements. These interim orders are important because they illustrate a practical truth of custody litigation: final judgments may come years after separation, but the child’s relationship with each parent is shaped every week by interim access. Repeated adjournments, weakly drafted visitation orders or failure to enforce access can alter the status quo long before a permanent guardianship petition is decided. Courts therefore require tools that allow them to assess how the child is actually responding to each parent rather than relying exclusively on adversarial affidavits.

As the dispute moved into appellate proceedings, the High Court interacted directly with the child and also encouraged mediation. The record indicated that the child appeared self-confident and capable of expressing himself clearly. The High Court observed that he was comfortable in interactions with the father and paternal grandparents and that he referred positively to experiences with paternal relatives. Such observations did not by themselves decide custody, but they became part of the broader welfare picture.

4. Referral to mediation and involvement of a counsellor

The High Court referred the parties to mediation. In addition to the mediator, a counsellor interacted with the child. This is where the later legal controversy emerged. Mediation is ordinarily confidential. Settlement negotiations are protected because parties must be able to speak candidly without fear that concessions or proposals will later become evidence. But a child counsellor performs a different function from a mediator negotiating terms between parents.

A mediator’s core task is to facilitate settlement. A counsellor engaging with a child may instead observe the child’s emotional responses, comfort, fear, bonding, language, spontaneity, attitude to each parent and other welfare-related indicators. The distinction is not absolute in every case, but it is conceptually important. The Supreme Court was required to decide whether the confidentiality umbrella should cover all such material merely because the counsellor was involved during a mediation process.

The counsellor prepared reports concerning interactions with the child. The father sought to rely on these reports. The mother objected, contending that they were part of confidential mediation and therefore could not be considered in adjudication. The litigation thus shifted from the substantive custody dispute to a procedural and evidentiary question with much wider implications for Family Court practice.

5. The first Delhi High Court decision and review proceedings

The Delhi High Court initially considered the counsellor’s material. The subsequent review petition challenged this approach. The review proceedings became significant because the High Court ultimately altered its earlier position, leading to the Supreme Court appeal.

The Supreme Court therefore had to address not only mediation confidentiality but also the permissible scope of review jurisdiction. A review is not a rehearing of an appeal on merits. Under the familiar principles associated with Order XLVII Rule 1 of the Code of Civil Procedure, review jurisdiction is narrow. An error must generally be apparent on the face of the record, or some other recognised ground must justify reopening the decision. A court does not ordinarily review merely because a different view of law or facts may be possible.

The appellant father argued that the High Court had effectively sat in appeal over its own earlier decision. According to him, the review was used to reconsider contested legal questions rather than correct an obvious error. This procedural issue mattered because if the review itself was beyond jurisdiction, the earlier High Court order would revive even before the Supreme Court reached the confidentiality question.

6. Arguments on behalf of the father

The father advanced several lines of argument. First, he contended that the High Court had exceeded the limited scope of review. An error that requires extended reasoning, competing interpretations and elaborate legal argument is generally not an error apparent on the face of the record. If two views are reasonably possible, review is not meant to function as an appeal.

Second, he argued that the counsellor’s report was not equivalent to confidential statements made by the parents during mediation. The report recorded the child’s interaction and professional observations rather than settlement concessions by the adult parties. Therefore, the underlying rationale of mediation confidentiality did not apply in the same way.

Third, he relied on the special nature of child-custody jurisdiction. Courts act as parens patriae and have a duty to protect the child. That duty may justify access to information that assists the welfare inquiry, particularly where the information concerns the child’s own spontaneous responses.

Fourth, he emphasized that the involvement of the counsellor was known to the parties and had occurred under the supervision of the court-connected process. There was no allegation that the counsellor lacked competence, acted mala fide or manipulated the child. The objection was primarily legal: whether the report could be seen at all.

7. Arguments on behalf of the mother

The mother defended the review judgment and relied heavily on confidentiality. Her position was that mediation succeeds only if information generated during the process is protected. If courts later rely on mediation material, parties may become reluctant to speak freely or to participate in good faith.

She also challenged the legal status of the counsellor’s involvement. Under the Family Courts Act, counsellors may be appointed within a statutory framework. The counsellor in question was not necessarily appointed in the precise manner contemplated by Section 6. The mother therefore argued that the report should not be treated as if it were a formal Family Court counsellor report.

A further argument concerned the scope of exceptions. Even if certain Family Court rules permitted counsellor reports relating to home environment, personality or the child’s relationship with the parents, those provisions should not automatically override the confidentiality rules governing mediation. According to this reasoning, the two regimes served different purposes and had to be kept separate.

She also maintained that there had been no waiver of confidentiality. The use of the material had been objected to, and therefore the father could not rely on implied consent merely because the child had interacted with the counsellor.

8. The statutory framework: Family Courts Act, 1984

The Family Courts Act is central to understanding the Supreme Court’s reasoning. The statute was enacted to establish Family Courts and promote conciliation and speedy settlement of disputes relating to marriage and family affairs. Its design is deliberately less rigid than ordinary civil litigation. Family Courts are expected to combine adjudication with counselling, conciliation and welfare-sensitive procedure.

Section 4 concerns the appointment of Family Court judges and reflects a legislative preference for judges committed to conciliation and the welfare of children. This is not merely aspirational language. It reveals the underlying character of the jurisdiction. Family litigation cannot be handled as if it were a commercial suit in which the court is concerned only with competing private rights.

Section 6 permits the appointment of counsellors. Counsellors can perform a vital role in understanding family dynamics, communicating with children and helping courts assess issues that cannot be captured by legal pleadings alone. Their function may include assisting parties toward settlement, but in custody cases they can also provide information relevant to welfare.

Section 12 gives Family Courts power to secure the services of medical and welfare experts. The breadth of this provision was significant to the Supreme Court. It indicates that technical objections should not prevent a court from obtaining appropriate expert assistance where the welfare inquiry requires it.

9. Mediation confidentiality: why the principle exists

The Supreme Court did not undermine the general rule of mediation confidentiality. On the contrary, it explained why the rule is essential. Mediation works because it differs from adjudication. In court, parties take adversarial positions and statements may become evidence. In mediation, the purpose is to encourage resolution. Parties may admit weakness, propose compromise, acknowledge facts for settlement purposes or make offers they would never make in pleadings.

If every such statement could later be produced in court, the process would become unsafe. Lawyers would advise clients to speak cautiously. Parties would stop exploring creative settlements. The very candour that makes mediation useful would disappear. Confidentiality therefore protects not merely the parties but the institutional effectiveness of mediation.

For that reason, the Supreme Court recognised that statements by parents during settlement discussions ordinarily cannot be relied upon later simply because the mediation failed. The dispute in Perry Kansagra was narrower: whether observations concerning the child stand on exactly the same footing.

10. The distinction between parental settlement communications and child-welfare observations

The Court drew a functional distinction. A parent’s statement such as an offer to relocate, concede school choice or accept a particular visitation schedule may be part of settlement negotiation. A child’s spontaneous response to a trained counsellor is different. The child is not bargaining. The child is not making a litigation concession. The child’s behaviour may reveal information about comfort, bonding, fear, confidence or emotional adjustment.

When a custody court must determine welfare, such information can be valuable. Excluding it automatically would deprive the court of material potentially more reliable than the parents’ partisan allegations. The Court therefore reasoned that the rationale for confidentiality does not operate identically in relation to child-welfare observations.

This distinction is one of the most practically important parts of the judgment. It does not mean that every statement by a child must be disclosed. Courts remain responsible for privacy, sensitivity, relevance and the potential harm of overexposure. But the presence of a mediation setting does not by itself make the child’s welfare information unusable.

11. Parens patriae jurisdiction and the protective role of the court

Child-custody courts act in a parens patriae capacity. The phrase refers to the court’s protective jurisdiction over persons who cannot fully protect their own interests. In custody disputes, the child is not simply the subject matter of litigation between parents. The child is the central rights-holder whose welfare the court must independently protect.

This alters the ordinary adversarial model. A judge is not confined to deciding which parent proved a superior legal entitlement. The court may interact with the child, seek expert assistance, examine school or medical records, obtain counselling input and fashion arrangements that neither parent proposed. The objective is not to reward a parent or punish matrimonial misconduct unless that conduct bears on welfare.

Perry Kansagra uses this protective conception to explain why access to relevant child-welfare information may outweigh an overbroad confidentiality claim. The court cannot fulfil its duty if materially relevant welfare information is artificially excluded merely because it arose during a court-connected conciliatory process.

12. Welfare of the child as the paramount consideration

The Supreme Court reiterated the familiar principle that the welfare and best interests of the child are paramount. This proposition runs through Indian custody jurisprudence from Gaurav Nagpal to Nil Ratan Kundu, Elizabeth Dinshaw, Athar Hussain and numerous later decisions.

Welfare is not limited to physical comfort. It includes moral, ethical, emotional, educational and psychological well-being. Financial superiority does not automatically determine custody. Nor does formal status as natural guardian. The court must consider the totality of circumstances and the child’s actual lived experience.

This holistic conception is why counsellor observations can matter. Parents may each present carefully curated affidavits. A child may nonetheless exhibit spontaneous comfort, hesitation, fear, affection or anxiety in a professionally managed interaction. Such observations are not infallible, but they can supplement the court’s understanding.

13. Family Court Rules and the role of counsellor reports

The Supreme Court examined the Family Court rules applicable in Delhi. Those rules contemplated counsellor reports concerning home environment, the parties’ personalities and their relationship with the child. The Court viewed these provisions as evidence that the legal framework itself recognises a welfare-based exception to absolute confidentiality.

The logic is straightforward. If the statute and rules expect counsellors to assist judges in deciding guardianship and custody, it would be contradictory to say that every welfare observation becomes inaccessible whenever the counsellor’s engagement occurs alongside mediation. The court must distinguish what is truly settlement-confidential from what is welfare material generated for judicial assistance.

Practitioners should therefore avoid simplistic labels. Instead of arguing that a document is confidential merely because it came from a mediation centre, lawyers should analyse its content, purpose, author, terms of reference and intended recipient.

14. Was the counsellor formally appointed under Section 6?

One technical objection was that the counsellor had not been appointed in the precise statutory manner under Section 6 of the Family Courts Act. The Supreme Court declined to elevate this technicality above the child’s welfare. It noted the breadth of the court’s power to obtain expert assistance and the fact that the counsellor’s involvement was known and accepted in the proceedings.

This does not mean appointment procedure is irrelevant. Proper appointments protect fairness, neutrality and accountability. But where a competent counsellor has interacted with the child under judicial supervision and no substantive allegation of bias or misconduct is made, the court may be reluctant to exclude useful welfare material solely because of a technical appointment objection.

For lawyers, the lesson is twofold. First, seek clear orders defining the counsellor’s role to avoid later controversy. Second, if challenging a report, focus on actual prejudice, methodology, competence or procedural unfairness rather than relying only on formal labels.

15. Review jurisdiction: why the procedural point mattered

The Supreme Court also considered whether the Delhi High Court’s review judgment had exceeded the permissible scope of review. Review is not an appeal in disguise. It is intended to correct obvious errors, consider specified new material or address recognised grounds sufficient to reopen an order.

The Court referred to settled principles that an error apparent on the face of the record must generally be self-evident. If identifying the error requires lengthy reasoning and there are competing legal views, the matter ordinarily belongs in appeal rather than review.

In Perry Kansagra, the confidentiality issue itself was legally complex. That complexity supported the argument that the review court had effectively re-evaluated the merits rather than corrected an obvious error. The Supreme Court ultimately restored the earlier High Court judgment.

This aspect is useful beyond custody law. Family Court and matrimonial appeals often generate review petitions because interim arrangements evolve. Lawyers should remember that changed circumstances may justify a fresh custody application, but they do not automatically justify review of an earlier judgment on the same record.

16. The Supreme Court’s ultimate holding

The Court allowed the father’s appeal, set aside the Delhi High Court’s review judgment and restored the earlier judgment. It held that the counsellor’s reports need not be excluded merely because the counsellor had participated in the mediation environment.

The Court recognised that adult settlement communications remain protected by confidentiality, but natural responses and statements made by the child to a counsellor can provide valuable welfare inputs. The child’s interests justify a limited departure from ordinary confidentiality where the material directly assists the court’s protective function.

The judgment therefore creates neither a blanket confidentiality rule nor a blanket disclosure rule. It requires careful categorisation. Settlement communications remain protected; child-welfare observations may be considered where relevant and properly generated.

17. What the judgment does not say

Perry Kansagra is sometimes overstated. It does not hold that everything said in mediation can be produced in court merely because a child is involved. The confidentiality of adult negotiations remains important. A parent cannot ordinarily extract the other side’s settlement concession and use it as evidence of liability or fitness.

It also does not say that every counsellor report is automatically reliable. A report may still be challenged for bias, inadequate methodology, limited interaction, factual error, lack of qualifications, failure to hear both sides or conclusions that go beyond the counsellor’s expertise.

Nor does the judgment allow public disclosure of sensitive child material. Court files, pleadings and judgments involving minors should be handled with restraint. The child’s privacy remains part of welfare.

18. Evidentiary value of counsellor reports after Perry Kansagra

A counsellor report is not the equivalent of a final judicial finding. It is one piece of evidence or welfare material. Its weight depends on the quality of the interaction, the counsellor’s qualifications, the number of sessions, neutrality, consistency with other evidence and whether the child was exposed to coaching or pressure.

Courts should therefore read such reports contextually. For example, a child’s reluctance to meet one parent may arise from genuine fear, ordinary separation anxiety, loyalty conflict, coaching, prolonged absence or situational discomfort. A single sentence cannot resolve those possibilities. Repeated patterns, corroborating records and professional assessment matter.

Lawyers should resist the temptation to treat a favourable counsellor observation as conclusive. The stronger strategy is to integrate it with school records, medical evidence, access history, communications, caregiving chronology and the parent’s conduct toward the child’s relationship with the other parent.

19. How to challenge a counsellor report responsibly

If a report is adverse, the response should be disciplined. Begin by examining the order appointing the counsellor. What questions was the counsellor asked to address? Was the report intended for the court? Were both parents given an opportunity to interact? How many sessions occurred? Was the child seen alone or in the presence of a parent? Were there language or cultural issues?

Next, separate observation from inference. A statement such as “the child became quiet when the father was mentioned” is an observation. A conclusion such as “the father has alienated the child” is an inference requiring a broader evidentiary basis. Courts should be invited to distinguish the two.

Finally, avoid attacking the child. A child’s inconsistent statements may reflect conflict, fear, developmental limitations or divided loyalties. The litigation strategy should focus on methodology and context rather than accusing the child of lying.

20. How to rely on a counsellor report effectively

If the report supports your client’s position, do not simply annex it and declare victory. Explain why it is reliable. Identify the counsellor’s qualifications, the duration of interaction and the consistency of observations with objective facts. Connect the report to the child’s school routine, past caregiving and existing access arrangements.

Where appropriate, ask for practical orders rather than punitive findings. If the report shows that the child is comfortable with both parents, seek expanded visitation, holiday sharing or a structured parenting plan. If it identifies anxiety, propose gradual contact, therapeutic support or neutral handovers. A welfare report should guide a child-centred remedy, not become a weapon in matrimonial hostility.

21. Mediation privilege and the new Mediation Act context

Although Perry Kansagra arose before the Mediation Act, 2023, its reasoning remains highly relevant. Modern mediation legislation reinforces confidentiality as a core principle, but family disputes continue to require special sensitivity where children’s welfare is involved.

Practitioners should distinguish between confidential mediation communications and separate expert or welfare processes. A court may refer parties to mediation while independently directing counselling or child interaction. The safer practice is for the order to state clearly which process is confidential, whether any welfare report will be submitted to the court and whether parties will have access to it.

This clarity avoids later disputes about whether the counsellor was acting as part of settlement negotiations or as a court-appointed welfare professional.

22. Section 12 Family Courts Act and expert assistance

Section 12 provides a flexible statutory basis for Family Courts to secure assistance from medical and welfare experts. Its importance has grown as custody disputes increasingly involve allegations of trauma, alienation, developmental needs, neurodiversity, substance abuse or domestic violence.

Expert assistance should not, however, become routine over-testing. Courts must balance the need for information against the risk of subjecting children to repeated interviews. Later Supreme Court decisions have emphasised proportionality in psychological evaluation. Perry Kansagra supports access to useful welfare information, but it should not be read as encouragement for endless assessment.

A well-drafted application for expert assistance should specify the unresolved question. For example: whether gradual restoration of contact is advisable; whether supervised visitation is necessary; whether the child displays trauma symptoms; or whether the parenting plan should be adjusted for a special educational need.

23. Parental alienation allegations and counsellor evidence

Parental alienation is frequently alleged in custody cases, sometimes with justification and sometimes as a litigation label. Counsellor reports can be relevant, but courts must avoid circular reasoning. A child refusing contact does not automatically prove alienation. There may be abuse allegations, long absence, conflict at handovers or other explanations.

Conversely, persistent obstruction, coaching, denigration of the other parent or manipulation of schedules may support an alienation concern. The strongest cases rely on a pattern of objective conduct rather than rhetoric.

Perry Kansagra assists because it allows courts to consider professionally recorded child responses instead of relying solely on parental accusations. But the report must still be interpreted carefully and in conjunction with other evidence.

24. Confidentiality where domestic violence or abuse is alleged

Custody mediation becomes particularly sensitive when allegations of domestic violence, sexual abuse or coercive control are raised. The ordinary preference for settlement cannot override safety. Courts must consider whether joint mediation is appropriate at all and whether disclosures require protective intervention.

Perry Kansagra should not be used to force disclosure of all mediation conversations in such cases. Instead, the principle should be applied narrowly: relevant child-welfare observations generated for the court may be considered, while settlement communications remain protected unless a separate legal exception applies.

Where abuse allegations concern the child, expert assessment, medical records, police material and age-appropriate forensic interviewing may be more appropriate than ordinary mediation counselling.

25. Child interviews by judges versus counsellors

Judges sometimes interact directly with children in chambers or in court. Such interaction can provide a useful sense of maturity and preference, but it has limitations. A judge may have only a short meeting and may not be trained in child psychology. A counsellor may create a more relaxed environment and observe behaviour over multiple sessions.

The two forms of interaction should therefore complement rather than substitute for each other. A child’s stated preference is relevant, especially for an older child, but it is not automatically determinative. The court must consider whether the preference is stable, informed and consistent with welfare.

Perry Kansagra supports the proposition that professionally recorded child interaction can provide valuable inputs beyond what adversarial pleadings reveal.

26. Privacy and sealing of child-counselling material

Because counsellor reports may contain intimate information, courts should consider limiting access. The fact that a report can be considered does not mean it should be reproduced in full in public pleadings or judgments. Sensitive details concerning the child’s mental health, fears, school experiences or family relationships may require redaction or sealed treatment.

Lawyers should avoid quoting sensational extracts in open court filings unless necessary. The litigation record may remain accessible for years. Protecting the child from future embarrassment is itself part of welfare.

Where possible, seek directions limiting circulation to counsel, parties and the court. Electronic filings should also be handled carefully to avoid accidental public disclosure.

27. Cross-examination and procedural fairness

If a court proposes to place substantial reliance on an adverse expert report, procedural fairness may require an opportunity to respond. Whether formal cross-examination is necessary depends on the nature of the proceeding and the report. Family Courts have flexible procedure, but flexibility does not mean absence of fairness.

A party may request clarification, additional interaction, an independent expert or limited questioning where the report contains disputed factual assertions. The objective should be to test reliability without turning the child or counsellor into adversarial combatants.

Perry Kansagra permits consideration of welfare material; it does not eliminate the parties’ right to challenge how that material is interpreted.

28. Practical drafting: application seeking a counsellor interaction

An application seeking counsellor involvement should identify why expert assistance is needed. Avoid generic requests for “psychological evaluation.” State the specific difficulty: persistent refusal of contact, allegations of coaching, anxiety at handovers, need for gradual reunification or disagreement about relocation.

The prayer can ask the court to appoint a qualified counsellor, define the scope of interaction, direct that no parent coach or question the child about sessions, require a concise welfare report and clarify confidentiality. If the matter is in mediation, expressly distinguish mediation communications from the counsellor’s report.

This drafting reduces later objections and ensures that the expert process remains proportionate.

29. Practical drafting: objection to overbroad disclosure

If the other side seeks production of mediation material, distinguish categories. Settlement offers, admissions made to facilitate compromise and communications between mediator and parties should ordinarily remain confidential. A narrowly tailored welfare report may stand differently.

Ask the court to inspect the material if necessary and determine relevance. Request redaction of adult settlement communications. The objection should not be framed as an attempt to suppress all child-welfare information; that can appear inconsistent with the court’s protective jurisdiction.

A sophisticated objection protects mediation while conceding that genuinely independent welfare observations may be treated differently.

30. Practical drafting: relying on a child-welfare report

When relying on a report, connect it to the relief sought. If the child shows comfort with the non-residential parent, ask for a specific structured schedule rather than vague “reasonable access.” If the child experiences anxiety, propose phased contact. If travel is an issue, suggest passport safeguards, itinerary disclosure and virtual contact.

Courts prefer workable solutions. A report is most useful when it supports a concrete parenting arrangement. The application should therefore translate welfare observations into dates, times, school-holiday divisions, video-call schedules and handover mechanisms.

31. The relationship between Perry Kansagra and Gaurav Nagpal

Gaurav Nagpal is often cited for the proposition that welfare is paramount and parental rights are subordinate. Perry Kansagra applies that principle at the evidentiary level. If welfare is paramount, the court must have access to relevant information necessary to assess welfare.

Thus, Gaurav Nagpal provides the substantive standard while Perry Kansagra helps explain how courts may gather and consider material to apply that standard. Together, they are useful when resisting overly formal arguments that would prevent the court from examining the child’s actual circumstances.

32. Relationship with Nil Ratan Kundu

Nil Ratan Kundu emphasises a broad welfare inquiry and permits consideration of the child’s preference and the character and conduct of proposed custodians. Perry Kansagra complements this by recognising that professional child interaction may help the court understand such factors.

Neither case converts the child’s statement into a veto. The court must evaluate maturity, voluntariness and consistency. Counsellor input may assist in deciding whether a stated preference reflects genuine comfort or external pressure.

33. Relationship with psychological-evaluation jurisprudence

Recent Supreme Court decisions caution against routine psychological testing of children. That development does not contradict Perry Kansagra. The two lines of authority address different risks. Perry Kansagra prevents useful welfare information from being excluded merely because of confidentiality. Later cases prevent courts from subjecting children to unnecessary or repetitive forensic examination.

The combined principle is proportionality. Courts should obtain enough reliable information to decide welfare but should not make the child repeatedly prove emotional harm or parental influence through intrusive assessment.

34. Relevance to shared parenting

Shared parenting requires more than equal time. It depends on cooperation, geography, school schedules, communication and the child’s ability to move between homes without constant conflict. Counsellor observations may assist courts in assessing whether a child is comfortable with both parents and whether transitions cause distress.

If the report suggests strong bonds with both parents, courts may consider broader access or shared-care arrangements. If hostility between parents is severe, a detailed parenting plan can reduce opportunities for conflict by specifying logistics.

Perry Kansagra therefore has indirect relevance to shared-parenting design because it strengthens the evidentiary basis for understanding the child’s actual relationships.

35. Relevance to relocation disputes

Relocation cases frequently turn on how moving cities or countries will affect the child’s relationship with the other parent. A counsellor can help assess the strength of existing bonds, the child’s understanding of the move and whether long-distance contact would be workable.

Again, such assessment should be child-centred rather than outcome-driven. The counsellor should not decide the legal question of relocation. The court must weigh educational benefits, career needs, family support, immigration status, travel feasibility and access. But welfare observations may inform that balancing exercise.

36. Relevance to NRI and international custody

The Kansagra family itself had strong international connections. For NRI disputes, counselling can be especially useful because the child may identify with multiple countries, languages and extended families. A simplistic “India versus abroad” analysis can miss the child’s lived reality.

Courts may need information about the child’s familiarity with each jurisdiction, relationship with grandparents, travel history, school continuity and ability to maintain virtual contact. Counsellor reports can help, but must be interpreted alongside objective records.

37. Litigation strategy for fathers

A father facing restricted contact should focus on demonstrating consistent involvement and child-centred conduct. Regular exercise of access, attendance at school events where permitted, payment of child-related expenses and respectful communication can be more persuasive than aggressive allegations against the mother.

If counselling indicates a positive bond, the father can seek gradual expansion of access. If the child is reluctant, he should consider therapeutic or supervised restoration rather than demanding immediate overnight custody. Courts are more likely to trust a parent who proposes a developmentally appropriate plan.

38. Litigation strategy for mothers

A mother with primary residential care should similarly avoid assuming that primary caregiving automatically entitles her to control the child’s relationship with the father. If she has safety concerns, they should be supported by evidence. If counselling reveals comfort with the father, the case should shift toward structuring access rather than denying it.

Where the report appears unreliable, objections should focus on methodology and context rather than attacking the child or asserting absolute confidentiality without analysing the report’s function.

39. The danger of weaponising counselling

Child counselling can become harmful when parents treat it as another arena to win. Coaching the child before sessions, interrogating the child afterward, rewarding particular statements or repeatedly seeking new experts until one gives a favourable opinion can cause serious emotional harm.

Courts should therefore issue protective directions. Parents may be restrained from questioning the child about sessions. Reports can be kept confidential from unnecessary circulation. Multiple assessments should be avoided unless justified by changed circumstances.

The goal is information and support, not evidence manufacturing.

40. School counsellors and private therapists

Perry Kansagra involved court-connected counselling, but similar questions can arise with school counsellors or private therapists. Those relationships may carry different confidentiality obligations. A school counsellor’s notes are not automatically equivalent to a Family Court counsellor report.

Before seeking production, lawyers should consider therapeutic privilege, consent, relevance and potential harm. Courts may prefer a summary or expert opinion rather than full disclosure of therapy notes.

The principle of welfare should not be used as a licence for indiscriminate invasion of the child’s private therapeutic space.

41. Interaction with the Evidence Act / Bharatiya Sakshya Adhiniyam

Family Courts are not always bound by the same technical evidentiary rigidity as ordinary civil courts. The Family Courts Act permits flexible reception of material that may assist effective adjudication. With the Bharatiya Sakshya Adhiniyam replacing the Evidence Act for current proceedings, questions of relevance, expert opinion and electronic records continue to arise, but the Family Courts Act remains an important special statute.

Counsellor reports should therefore be approached through both relevance and welfare. A document may be admissible in a flexible Family Court sense yet receive limited weight if methodology is weak.

42. Review versus modification of custody orders

Custody orders are unusual because they may be revisited when circumstances change. A parent does not always need to challenge an earlier order through review. If the child’s age, school, residence, health or parental availability changes materially, a fresh application for modification may be appropriate.

This distinction matters after Perry Kansagra. The Supreme Court’s discussion of review jurisdiction should not be confused with the court’s continuing power to adjust custody arrangements prospectively in the child’s welfare.

43. Drafting an effective parenting plan after counselling

A strong parenting plan should cover regular weekends, school holidays, birthdays, festivals, video calls, medical decisions, school information, travel consent, passports, extracurricular activities and handovers. Where parents live in different countries, it should address airfare, advance travel notice, accommodation, return tickets and emergency contact.

Counsellor input can help determine whether overnight access is appropriate, whether contact should be phased and what transition arrangements reduce stress.

44. Enforcement of visitation orders

A favourable counsellor report is meaningless if access orders are not enforced. Courts increasingly recognise that vague directions such as “reasonable visitation” create repeated disputes. Orders should specify exact schedules and mechanisms for resolving missed contact.

If one parent repeatedly blocks access, the affected parent should maintain a neutral chronology and seek enforcement without inflammatory communication. The court can then distinguish genuine welfare concerns from deliberate obstruction.

45. Can a child counsellor recommend custody?

A counsellor may provide professional observations and, depending on the terms of appointment, may express welfare recommendations. But the legal decision belongs to the court. Experts should not usurp judicial functions.

The court must independently weigh the report with the entire record. A recommendation is strongest when its reasoning is transparent and based on multiple interactions rather than conclusory labels.

46. Can parties obtain copies of the report?

Access depends on the court’s directions and the sensitivity of the material. Procedural fairness may favour disclosure of material relied upon, but full unrestricted circulation may harm the child. Courts can provide redacted copies or permit counsel-only inspection in appropriate cases.

Applications should therefore ask for a tailored access regime rather than assume the report must either be completely secret or completely public.

47. Can the child be cross-examined?

Ordinary adversarial cross-examination of a child in custody proceedings is generally undesirable and potentially harmful. Courts prefer age-appropriate interaction through judges or trained professionals. If factual disputes require clarification, the method should protect the child from feeling responsible for the litigation outcome.

Perry Kansagra supports the value of spontaneous professional interaction precisely because it avoids transforming the child into a conventional witness.

48. Relevance to mediation lawyers and mediators

Mediators should clarify confidentiality at the outset. If a separate counsellor may prepare a welfare report for the court, parties should know that the report is not necessarily part of confidential settlement communications. Clear protocols preserve trust.

Lawyers should prepare clients accordingly. Parents must understand that mediation is not an evidence-gathering trap, but neither should they assume that every child-welfare observation is forever shielded.

49. Ethical obligations of counsel

Counsel in custody cases have a professional responsibility to avoid tactics that unnecessarily expose children to conflict. Aggressive publication of counselling material, disparaging the other parent in front of the child or encouraging the child to choose sides can undermine both welfare and credibility.

The best litigation strategy is often the one that shows the client can separate marital grievances from parenting responsibilities.

50. Practical checklist for lawyers

1. Obtain the order appointing the mediator/counsellor.
2. Identify whether counselling is for settlement, welfare assessment or both.
3. Clarify whether a report will be submitted to court.
4. Protect adult settlement communications from disclosure.
5. Assess the counsellor’s qualifications and methodology.
6. Compare observations with objective records.
7. Avoid repeated child interviews without necessity.
8. Seek redaction or sealed treatment of sensitive material.
9. Translate welfare findings into a workable parenting plan.
10. Preserve the child’s privacy in pleadings and public discussion.

51. Questions a Family Court should ask before relying on a report

1. Who appointed the counsellor and for what purpose?
2. How many interactions occurred?
3. Were both parents involved?
4. Was the child seen separately?
5. Were there language or cultural barriers?
6. Does the report distinguish fact from inference?
7. Is the conclusion consistent with school, medical and access records?
8. Would further assessment help or harm the child?
9. What practical order follows from the findings?
10. How can the child’s privacy be protected?

52. Frequently asked questions

Is everything said in mediation confidential?

No single answer applies to every type of material. Settlement communications by the adult parties are ordinarily confidential. Perry Kansagra recognises that child-welfare observations by a counsellor may stand on a different footing where they assist the court’s protective jurisdiction.

Can a counsellor report be used to decide custody?

It can be considered as welfare material, but it is not automatically conclusive. The court must evaluate reliability and the entire factual record.

Can the other parent object to the report?

Yes. Objections may concern methodology, competence, scope of appointment, procedural fairness, factual error or interpretation.

Can mediation confidentiality be waived?

Depending on the legal framework and context, parties may agree to limited disclosure, but child-welfare material can raise independent considerations. Courts should define scope carefully.

Does the judgment allow disclosure of settlement offers?

No. The Supreme Court reaffirmed the importance of protecting settlement communications.

Can a private therapist’s notes be demanded?

Not automatically. Private therapy raises distinct confidentiality and welfare concerns. Courts should consider proportionality and whether a less intrusive summary would suffice.

What if the child refuses to meet one parent?

Refusal should be investigated sensitively. It may reflect fear, alienation, conflict, long absence or other causes. Counselling may help identify the reason, but courts should avoid forcing the child into repeated examinations.

Can counselling lead to supervised visitation?

Yes, if the court concludes that gradual or supervised contact best protects welfare. It can also lead to expanded access where the child demonstrates comfort.

Does a favourable report guarantee custody?

No. Custody depends on the totality of welfare factors.

Can the Family Court modify visitation later?

Yes. Child-related arrangements may be modified when circumstances change and welfare requires adjustment.

53. Litigation takeaway for Delhi practitioners

Perry Kansagra should be cited with precision. The strongest proposition is not that “mediation confidentiality does not apply in custody cases.” That formulation is too broad. The more accurate proposition is that confidentiality protecting adult mediation communications does not necessarily require exclusion of professionally recorded child-welfare observations that assist the court in exercising parens patriae jurisdiction.

That nuance matters. Courts value both mediation and child welfare. A persuasive argument respects both rather than presenting them as mutually exclusive.

54. How this case fits into the Fastrack custody research cluster

This judgment should be read alongside Gaurav Nagpal v. Sumedha Nagpal on the paramount welfare principle, Nil Ratan Kundu v. Abhijit Kundu on child preference and broader welfare, and Sheetal Vasant Thakur v. Chirag Arora on proportionality in psychological assessment.

For the practical Delhi framework, see the Child Custody Lawyer in Delhi guide, the Visitation Rights in India guide, and the main Child Custody Judgments hub.

55. Conclusion

Perry Kansagra is a major procedural judgment in Indian child-custody law because it prevents mediation confidentiality from being applied mechanically in a manner that blinds the court to relevant welfare information. At the same time, it preserves the essential protection given to adult settlement communications. The decision therefore offers a balanced framework: protect the candour of mediation, but do not exclude professionally generated material about the child’s welfare merely because it arose within a broader mediation process.

For litigants and lawyers, the case underscores the importance of defining the role of counsellors at the outset, protecting the child’s privacy, challenging reports on substantive rather than technical grounds and translating welfare findings into practical parenting arrangements. For courts, it reinforces the broader principle that procedure must serve the child rather than become an obstacle to understanding the child’s actual needs.