Miller, J., concurs is part and dissents in part, and votes to reverse the order insofar as appealed from, and to deny those branches of the father’s motion which were to compel the production of the child for a physical examination, and for a psychiatric or psychological examination, with the following memorandum: I also concur with the majority decision insofar as it denies that branch of the father’s motion which was to compel the production of his daughter for another physical examination. I respectfully dissent from so much of the majority decision as affirms that portion of the Family Court’s order as requires six-year-old Jessica to be produced for a second examination by a psychologist or psychiatrist selected by her father, the respondent in this abuse proceeding. I disagree with the conclusion of my colleague, Justice Rosenblatt, that the record is insufficient to determine the applicability of Family Court Act § 1038 (c), as I find that this record amply supports a rejection of the father’s application for discovery.
The law originally applicable to the order appealed from was enunciated in Matter of Michelle A. (140 AD2d 604), where this court reversed an order of the Family Court granting the respondent’s motion to have several children examined by a psychiatrist of her choosing. In reversing the order of the Family Court and remitting the matter to it for further proceedings, we stated (supra, at 605): "Nevertheless we find that it was inappropriate for the court to order an examination of the children by the mother’s psychiatrist. Family Court Act § 251 gives the court the inherent power to subject any person in its jurisdiction to an examination by a 'physician, psychiatrist or psychologist appointed or designated for the purpose by the court’ (emphasis added). The statute makes it clear that the examination should be done by a court-appointed professional and not one chosen by a party to the proceeding (see, Matter of Crystal H., 135 Misc 2d 265; Giraldo v Giraldo, 85 AD2d 164, 172, appeal dismissed 56 NY2d 804; Matter of Grado v Grado, 44 AD2d 854; see also, Matter of Dara R, 119 AD2d 579)”.
Thus, we are all in accord that the order appealed from permitting the father to select a physician or psychiatrist or psychologist of his choice to examine Jessica was contrary to *548the law as it existed on January 5, 1989 (see, Matter of Michelle A., supra), when the order was entered. However, as the majority notes, it is applying the applicable law as it exists at the time of the appeal rather than the law at the time of the original determination. Therefore, we must apply Family Court Act § 1038 (c), which went into effect on July 24, 1989, six months after entry of the order appealed from. While the prior law required evaluations to be performed by court-appointed experts pursuant to Family Court Act § 251 (Matter of Michelle A, supra), the new statute permits second examinations to be conducted by other than court-appointed professionals under certain circumstances, upon the application of a respondent, Law Guardian, or social services worker. The statutory language explicitly requires that the court apply a balancing test prior to subjecting the alleged child victim to duplicative physical or psychiatric examinations, by expressly mandating that "the court shall consider the need of the respondent or law guardian for such examination to assist in the preparation of the case and the potential harm to the child from the examination” (emphasis added). The court is thus specifically required to weigh the potential harm to the child from the examination against the need of the respondent or the law guardian for such an examination in order to assist in the preparation of the case (see, Matter of Nicole, 146 Misc 2d 610 [where the court denied the respondent’s application for a second examination pursuant to Family Ct Act § 1038 (c) after applying the statutory balancing test]).
In applying the balancing test required by Family Court Act § 1038 (c) to the facts at bar, I find the scale is tipped heavily against granting the father’s application for a second psychiatric/ psychological evaluation of Jessica by a professional chosen by him. The potential trauma to Jessica substantially outweighs the father’s need for this discovery in order to prepare for the trial of this proceeding in which he, as the respondent, is alleged to have abused her.
The allegations of sexual abuse by the father were first enunciated by the mother in response to the father’s petition for a writ of habeas corpus. At that time, in court, the mother alleged that the child had stated to her that she had been sexually abused. As a result of the mother’s allegations, the court ordered an immediate investigation. The child was then interviewed by a caseworker from the Westchester County Department of Social Services (hereinafter the DSS) and was examined by a physician and therapist selected by the DSS. Based upon the results of these evaluations, the DSS filed a *549petition alleging that the father had sexually abused the child in July 1988 in that he "placed his hand under the underpants of the subject child, Jessica [and] placed his penis on the subject child['s] crotch and ejaculated on her dress”. Even the initial examinations which were essential to the founding of the allegations and the filing of the abuse petition by the DSS were significantly traumatic to this child. The pediatrician, Doctor Tames, was required to examine the child physically on two separate occasions under sedation due to her excessive anxiety. Dr. Virginia Strand, D.S.W., was retained to evaluate the child in order to determine whether the child’s presentation was consistent with child sexual abuse syndrome. She was required to meet with the child on several occasions before Jessica felt comfortable enough to communicate with her with regard to the allegations of sexual abuse.
Significantly, in the case at bar, the father has not challenged the qualifications, bias or independence of the experts who have already examined the child, although the curricula vitae of both experts have been disclosed to him. Dr. Tames is director of the division of adolescent medicine and an assistant professor of pediatrics at New York Medical College, Westchester County Medical Center. He is a board-certified pediatrician and a diplómate of the National Board of Medical Examiners. Dr. Virginia Strand, with a D.S.W. degree from Columbia University School of Social Work, is an assistant professor at Fordham University. She is a director of the child sexual abuse training program there, in charge of over-all administration of specialized training programs for mental health professionals and child welfare staff working in the area of child sexual abuse. She was also an adjunct assistant professor at Columbia University School of Social Work. There is no claim that either expert was selected by the child’s mother or that she had any prior or present relationship with them. Even if the child’s therapist had had a relationship with her, the Court of Appeals has held that, under such circumstances, the therapist should not be disqualified from giving evidence that the child was sexually abused, reasoning that any alleged bias of the expert could be addressed on cross-examination by the respondent (Matter of Nicole V, 71 NY2d 112).
Moreover, the father, although he was provided with copies of the forensic evaluations and records, has failed to suggest that the performed examinations were in any respects inadequate or deficient (see, Rosenblitt v Rosenblitt, 107 AD2d 292). This court, in Rosenblitt, a custody proceeding, denied further *550psychiatric evaluation of one spouse by the other’s privately retained expert, holding that where court-ordered forensic examinations have been conducted, and not a single reason was presented in support of the application for further evaluations, it would be an abuse of discretion to compel an adult party to submit to duplicative, harassing evaluations by a privately retained expert (see, Rosenblitt v Rosenblitt, supra, at 294). A nonparty child victim deserves no less protection. Our reasoning in Rosenblitt is appropriate to this abuse proceeding, where the father has failed to demonstrate that he needs additional examinations for preparation of his case.
That the interrogation of a young child regarding incidents of sexual abuse may be highly traumatic has been acknowledged by the courts (see, Matter of Michelle A., supra; Matter of Tara H, 129 Misc 2d 508, 509; Matter of Carew, 131 Misc 2d 835; Matter of Maria F., 104 Misc 2d 319; People v Beauchamp, 126 Misc 2d 754, mod on other grounds 74 NY2d 639), as well as by the explicit terms of the new statute, Family Court Act § 1038 (c), which recognizes that the examination may be potentially harmful.
Nor will a denial of the father’s application for an evaluation by experts of his own choosing deny his due process rights under the circumstances, or preclude his reasonable preparation for trial. He has received the disclosure obtained by the DSS and the forensic experts’ reports and records. He is in fact entitled to utilize all normal discovery processes other than the unjustified intrusive subjection of the child to additional physical and psychosexual evaluations. He will be able to depose the experts and parties prior to trial,1 to cross-examine the experts, as well as to present his own expert, who will have had an opportunity to evaluate the reports that have been provided by the impartial experts. There is no reason to assume that experts provided by the father would be more capable of evaluating the child, or more honest in the evaluation of the child, than those selected by the DSS, a party unrelated to either the father or the mother in this case.2
The majority’s belief that multiple evaluations will increase the flow of useful information to the court is, I believe, *551erroneously based on protections afforded criminal defendants and patients whose mental capacity is in doubt (see, CPL 730.20; Family Ct Act § 322:1; Mental Hygiene Law § 9.27; see, Rosenblitt v Rosenblitt, supra, at 298 [dissent by Lazer, J. P.]). However, the duplicative or multiple discovery procedures afforded to persons facing trial or commitment, or, to cite another example in civil case law, to complex, multiparty products liability litigation, have no applicability to the child victims in abuse proceedings, where such procedures applied to a child may do great harm.
The new statutory language merely requires that prior to granting the requested discovery, the court must weigh the trauma to the child against the need of the respondent (or Law Guardian) to prepare for trial, creating no presumption either in favor of or adverse to a second examination (but cf., Matter of Nicole, supra). However, the amendment must be construed and interpreted consistently with the purposes and principles of the Family Court Act which it amends, namely the protection of children.
It is significant that in criminal court proceedings as well as in Family Court proceedings, discovery with regard to children is restricted in view of the risk of additional trauma to the child victim. Where a defendant charged with rape, sodomy and sexual abuse of children aged four to six, brought an application for an order pursuant to CPL 240.40 directing that the infant complainants be produced for physical and/or psychiatric examinations by physicians retained by defendant, the motion was denied, the court finding: ”[t]hese children are not discoverable items * * * The emotional trauma resulting from child sexual abuse is more serious than the physical trauma * * * In balancing rights, a court should not function in a vacuum. It must be understood and conceded that a court-directed examination by defendant’s psychiatrists would be aimed at proving his allegations. The infants would be questioned for the purpose of determining whether they were persuaded to testify falsely about their sexual abuse at the outset. They would not be interrogated with therapy in mind. It will be another ego diminishing episode—a recurring trauma—setting the stage for traumatic repercussions * * * The medical profession has a responsibility to these children— to heal them. The courts have equal responsibility—to protect them. * * * While the court has the continuing burden to protect the rights of the accused—it has at least an equal obligation to safeguard the welfare of minors” (People v Beauchamp, supra, at 756-757).
*552The State’s traditional " ' "transcendent interest in protecting the welfare of children” ’ ” was recently reaffirmed by the United States Supreme Court and applied to permit closed-circuit television taping of child witnesses in criminal proceedings, where necessary to protect the child (Maryland v Craig, 497 US —, —, 110 S Ct 3157, 3168).
Concern for the rights and well-being of children is even more appropriate in Family Court protective proceedings than in criminal proceedings. The defendant in a criminal proceeding risks penalties of conviction of a crime and subsequent incarceration, while the respondent in an abuse proceeding risks neither incarceration nor a civil fine. Contrary to the penal aspect of criminal proceedings, the purpose of article 10 proceedings is to "establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental and emotional well-being. It is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of [the] child so that [the child’s] needs are properly met” (Family Ct Act § 1011).
Although the father contends that additional physical and psychological examinations of the child would be performed in a stressless manner, such examinations have been denied because of the potential resulting trauma to the child. In Matter of Carew (131 Misc 2d 835, supra), the court denied the father’s application for psychiatric examination of the subject children by his own psychiatrist, reasoning that the role of expert testimony where experts are hired by the respective parties differs in tort, criminal, and condemnation cases, from an acceptable standard in child abuse proceedings, where the subject of the examination is the child. In Matter of Maria F. (104 Misc 2d 319, supra), the father was denied disclosure by way of oral deposition of his 12-year-old child, the court holding it was not appropriate to direct a child of tender years to appear for an examination before trial in an abuse proceeding.
The provisions of Family Court Act § 1038 (c) create a disturbing anomaly to the general principles of discovery in legal proceedings. The child, alleged to be the victim in abuse proceedings, is the subject of, but not the party to, those proceedings, and may be regarded as a nonparty witness. Family Court Act article 10 expressly protects these children consonant with due process, so as "to help safeguard their physical, mental and emotional well-being” (Family Ct Act § 1011). There appears to be no precedent for the invasive *553discovery of such nonparty witnesses by requiring their examination by physicians or psychiatrists chosen by any party to civil or criminal proceedings, other than under exceptional circumstances where the mental capacity of the witness is in issue (see, e.g., People v Parks, 41 NY2d 36; People v Graham, 117 AD2d 832; People v Knowell, 94 AD2d 255). To make an exception for the examination of children in child protective proceedings and thereby subject them to invasive discovery may not merely subvert Family Court Act article 10, but deprive child victims of their due process rights. That Fourteenth Amendment protections are not intended for "adults only” was long ago recognized by the United States Supreme Court (In re Gault, 387 US 1).
My review of the legislative history underlying the new statute casts little light on whether the concerns noted herein were recognized or considered by the Legislature. The passage of the statute appears not to have generated noteworthy exposure or discussion or to have prompted any public controversy, notwithstanding its potentially significant consequences. Nonetheless, it clearly overrules prior case law. While its constitutionality has not as yet been tested, and is not raised on the subject appeal, in view of its context within the Family Court Act, and its aberrational nature in regard to discovery proceedings, the unique discovery which it makes available should be permitted only where special circumstances tip the balance in favor of the accused’s needs rather than the victim’s protection from further injury (e.g., where the victim appears less than highly vulnerable, or well-qualified experts are not available to the court). As applied to the instant case, where Jessica, now six years old, has revealed her vulnerability by her traumatic response to the initial evaluations performed by highly skilled experts not retained by either of her parents, and where the father has had substantial discovery and more than reasonable opportunity to prepare for his defense, application of the balancing test in Family Court Act § 1038 (c) requires denial of the additional examinations.
Accordingly, the order directing that Jessica be produced for second evaluations by a physician and psychologist or psychiatrist selected by her father should be reversed insofar as appealed from.
. Indeed, the record of Family Court proceedings occurring subsequent to entry of the order appealed from make it clear that such depositions have been held.
. Videotaping of the initial validation interview should be considered as a discovery device, more appropriate and less invasive than multiple examinations by experts selected by the accused.