The story so far: An ongoing custody battle for a two-year-old girl separated from her Indian parents in Germany two years ago has triggered a diplomatic spat between India and Germany. In response to renewed appeals from baby Ariha’s parents earlier this month, the government expressed its “dismay” over the treatment and “infringement” of the toddler’s social, cultural and linguistic rights in German foster care for over 20 months, while calling on Germany to repatriate the child at the earliest. The Centre also rejected claims that Germany had tried to identify an Indian family to provide foster care of the child pending a court verdict, terming such reports an “attempt to obfuscate the issue”.
What is the case?
Software engineer Bhavesh Shah moved to Berlin with his wife Dhara Shah in 2018 and had a baby girl a few years later. In September 2021, baby Ariha Shah was barely seven months old when she was taken away from her parents by German authorities on charges that she was abused at home.
While some media reports claim that the baby was accidentally hurt in the perineum by her visiting grandmother, the couple say they took the toddler to a hospital for a check-up after they noticed blood in her diaper. “The doctor initially told us that all was fine. But when we went for a follow-up, the hospital accused us of sexually abusing her [Ariha] and informed the child services,” Ms. Shah says.
The child was taken away and placed in the custody of the German Youth Welfare Office, known as Jugendamt.
What is the role of Jugendamt and is it empowered to take away children?
The Jugendamt is a department within the city administration or municipality, set up in 1924 for the welfare of children and adolescents. It claims responsibility for all families residing in the country, regardless of nationality or residence status.
The Office says it gets involved in cases that concern “neglected or abused” children. An employee first speaks to the family, neighbours, teachers or caretakers. Once it is verified that the child is in danger, the department takes them away from the family “in case there is no other solution.”
“Physical punishment or mistreatment of children is prohibited by German law. The Youth Welfare Office also often takes over the guardianship of the children and youth without parents or those with parents currently unable to take care of them,” it states on its website. The Jugendamt, however, needs the intervention of a family court for custody.
Once a child is in Jugendamt’s custody, they are sent to a foster family or a supervised shelter for children. The department claims it sends back the child “as soon as the situation improves at home.” However, more than two-thirds of children taken into custody by the Youth Welfare Office never return to their families, as per a 2020 paper published in Children and Youth Services Review by Hendrik Ronsch of Institut Familie, a German private research institute. There are numerous petitions online by families who accuse the Jugendamt of forcibly separating them from their children on baseless grounds. In 2018, the European Parliament took cognisance of a large number of petitions by non-German parents and sounded the alarm over the controversial role of the Jugendamt
Why was baby Ariha placed in custody of Jugendamt?
After Ariha was taken away by Jugendamt, an investigation was ordered against the Indian couple to probe charges of sexual assault and harassment. But in December 2021, the hospital where the Shahs had taken Ariha for consultation ruled out an assault. Soon, the police also dropped the case against the couple without any formal charges, but Ariha was not sent back to her parents and the civil custody case continued.
According to German sources, authorities dropped criminal charges because it could not be ascertained if the couple was responsible for the injuries. They, however, maintain that the couple was in “violation of conventions of the safety of children”.
The Jugedamt pressed for permanent custody of the child and filed a civil custody case for the termination of parental rights. A German family court asked for a parental ability report. The court-appointed psychologist recommended that the child be placed with the parent in a parent-and-child facility, with the other parent regularly visiting her.
But before the court could issue an order, the Jugedamt moved Ariha out of her foster home of over 20 months and shifted her to a centre for children with special needs. “Ariha is not a special needs child. They are treating her like a toy. Court process holds no value for them,” her mother says.
Ariha’s parents demand that the baby, an Indian citizen, be handed over to the Indian government or be allowed to stay with an Indian family with their traditional Jain beliefs. Questioning Germany’s reluctance to repatriate the two-year-old to India, they say, “We understand that we are dealing with another country and the process is bound to take time. But why is Ariha forcibly kept in Germany where her cultural and linguistic rights are being violated? She is living like an orphan in Germany.”
German sources, however, claim that they had identified an Indian foster family to care for Ariha, but her family decided against it. The custody battle has since snowballed into a diplomatic row.
The diplomatic row with Germany
The Indian government has been “proactively advocating” for baby Ariha’s return but there has been no resolution so far despite several high-level visits between Berlin and New Delhi, including two visits by Prime Minister Narendra Modi in 2022.
In December last year, External Affairs Minister S. Jaishankar raised the contentious matter with German Foreign Minister Annalena Baerbock during her India visit. In a press conference that followed, the Minister said, “We have concerns that the child should be in her linguistic, religious, cultural and social environment. This is her right. Our embassy is pursuing the matter but it was also a matter I brought up with the minister.”
His counterpart assured that the child’s well-being is the priority. But she also remarked that children are taken into custody by the youth office when there are serious concerns about their well-being, like violent sexual abuse or severe neglect.
At the time, the two countries had failed to make any headway.
The case gained national attention recently after Maharashtra CM Eknath Shinde wrote to the EAM, advocating for stronger diplomatic action.
Following Mr. Shinde’s letter, External Affairs Ministry spokesperson Arindam Bagchi reiterated India’s commitment to ensure the safe return of Ariha, while expressing concern over her “abrupt” shifting. “We and the parents believe that this rapid change is not in the child’s best interest and could have far-reaching consequences for her emotional and mental development,” he said in a media briefing on June 2.
Mr. Bagchi added that the embassy made multiple requests to German authorities to ensure that Ariha’s connection with her cultural, religious and linguistic background is not compromised. “Unfortunately, our requests in this regard for safeguarding Ariha’s national and cultural identity have not been met,” he said. He added that the German authorities have been made aware of India’s child protection system and given the details of potential foster parents willing to bring up the child in her sociocultural environment.
The issue was also taken up by a group of MPs who wrote to the German Ambassador to India Philipp Ackermann earlier this month. The MPs sought repatriation of Ariha, saying that shifting her around will cause deep and damaging trauma. “We do not cast aspersions on any agency in your country and assume that whatever was done was thought to be in the best interests of the baby. We respect the legal procedures in your country, but given that there are no criminal cases pending against any member of the said family, it is more than time to send the baby back home,” said the signatories, which included Congress MP Shashi Tharoor, Dravida Munnetra Kazhagam’s K. Kanimozhi, Supriya Sule from the Nationalist Congress Party (NCP), Priyanka Chaurvedi from Shiv Sena (UBT) and Mahua Moitra from Trinamool Congress.
