Manuel Frederik Baumann v. State of NCT & Anr.

1. The present application has been instituted on behalf of the petitioner – Mr. Manuel Frederik Baumann praying as follows:- “a) Direct the desealing of the envelope containing the child Counselor Report and further direct the registry to provide the certified copy of the report of the Ld’ Child/ Family Counselor to the Counsel for the Petitioner;” 2019:DHC:6005-DB

2. It is an admitted position that during the pendency of the habeas corpus petition instituted on behalf of the petitioner herein, this Court had called for a report from the child counsellor, who had interacted with the minor child of the estranged couple and had been associated in the mediation held between the parties before the Delhi High Court Mediation and Conciliation Centre (“DHCMCC").

3. It is further observed that in the judgment and order dated 20th September, 2018, while disposing of the habeas corpus petition, this Court had commented on the report of the child counsellor, in Para 30, thereof, as follows: “30. On 5th May 2018, the Court was again informed that the mediation had not succeeded. The report of the child counsellor, submitted to the Court in a sealed cover, stated that the child wished to return to Dubai to resume her schooling. The child counsellor noted that, at that point in time, the child was confused as to whether she wanted to be with her mother in India or with her father in Dubai. She further observed that the child was “facing a difficult phase due to estrangement of her parents” and that “in the given set of circumstances she has expressed her willingness to live with her father”. However, as noted by us, the child clearly did not want to be away from her mother. She expected that her mother would be with her even if she opted to return to school in Dubai.”

4. In the above backdrop, the present application seeks a direction from this Court, to provide the petitioner with a copy of the child counsellor’s report. Learned counsel appearing on behalf of the petitioner would buttress his entitlement to a copy of the said report, on the decision of the Hon’ble Supreme Court in Perry Kansagra vs. Madan Kansagra reported as 2019 SCC Online SC 211 and in particular Paras 11, 14, 28, 29, 30, 31, 32, 33, 34 and 35 thereof, which are extracted herein below: “11. On 18.03.2017, the respondent filed Review Petition No.221 of 2017 questioning the judgment dated 17.02.2017. The Review Petition was allowed by yet another Division Bench of High Court by judgment and order dated 11.12.2017. After posing the question, “..whether the Counsellor’s report furnished in the course of mediation proceedings or the Mediator’s report in case of mediation, when the process fails, can be used by either of the parties during trial”, the High Court concluded that the reports of the Mediator and the Counsellor “..shall be disregarded by the family court, when it proceeds to decide the merits of the case”. During the course of its discussion, the High Court noted Delhi High Court Mediation and Conciliation Rules, 2004; Format of application of SAMADHAN (the Delhi High Court Mediation and Conciliation Centre); Conciliation rules of UNCITRAL; Sections 75 and 81 Arbitration and Conciliation Act, 1996; Mediation Training Manual issued by the Mediation and Conciliation Project Committee, Supreme Court of India and Chartered Institute of Arbitrator’s Rules mandating confidentiality in matters pertaining to mediation and observed as under:-

22. No exceptions are made in the mediation rules either in our laws or in various jurisdictions mentioned above to the absolute rule of confidentiality. This Court held the mandate of Section 12 of the Family Courts Act, 1984 cannot be lost sight of; yet the issue is whether the order dated May 6, 2016 was passed purely under Section 12 of the Family Courts Act, 1984 or it was simply to facilitate mediation of disputes between the parents of the child……”

14. The issues that arise for our consideration can broadly be put under two heads: 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.

28. Reliance was placed by the respondent on the decisions mentioned above and some statutory provisions including procedural norms in different jurisdictions to submit that there must be absolute confidentiality in respect of any statements made during the course of mediation. The appellant, however, relies upon Sub-Rule(viii) of Rule 8 of the Rules in support of the submission that in relation to matters, inter alia, of custody or guardianship of any child or children, the Counsellor could be asked to submit to the Judge a report 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 questions involved in the matter.

29. We, thus, have line of cases dealing with mediation/conciliation and other proceedings in general and Rule 8 of the Rules dealing inter alia, with custody issues which is in the nature of an exception to the norms of confidentiality. It is true that the process of mediation is founded on the element of confidentiality. Qualitatively, Mediation or Conciliation stands on a completely different footing as against regular adjudicatory processes. Instead of an adversarial stand in adjudicatory proceedings, the idea of mediation is to resolve the dispute at a level which is amicable rather than adversarial. In the process, the parties may make statements which they otherwise they would not have made while the matter was pending adjudication before a court of law. Such statements which are essentially made in order to see if there could be a settlement, ought not to be used against the maker of such statements in case at a later point the attempts at mediation completely fail. If the statements are allowed to be used at subsequent stages, the element of confidence which is essential for healthy mediation/conciliation would be completely lost. The element of confidentiality and the assurance that the statements would not be relied upon helps the parties bury the hatchet and move towards resolution of the disputes. The confidentiality is, thus, an important element of mediation/conciliation.

30. Complete adherence to confidentiality would absolutely be correct in normal matters where the role of the court is purely of an adjudicator. But 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. 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.

31. If the reports of the Counsellor touching upon the home environment of the parties concerned, their personalities and their relationship with their child or children would assist the court in determining the custody or guardianship issues, any technicality ought not to stand in the way. Sub-Rule (viii) of Rule 8 seeks to achieve that purpose and makes such material available for the assessment of the court. The observations of this Court in Ashish Ranjan vs. Anupma Tandon and another (2010) 14 SCC 274 have crystalized the approach to be adopted in matters concerning custody or guardianship issues. Paras 18 & 19 of the decision are as under:

19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. [Vide Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42, Chanrakala Menon v. Vipin Menon (1993) 2 SCC 6, Nil Ratan Kundu vs. Abhijit Kundu (2008) 9 SCC 413, Shilpa Aggarwal v. Aviral Mittal (2010) 1 SCC 591 and Athar Husain v. Syed Siraj Ahmed (2010) 2 SCC 654.]”