Ariha case: German court rejects Indian parents custody pleas, hands over child to local agency

While denying custody to Ariha’s parents or the Indian Welfare Services, the court relied on two injuries that she had suffered — a head and back injury in April 2021 and a genital injury in September 2021

A district court in Pankow, Germany, has in two judgments dated June 13  denied the custody of Ariha Shah — the 28-month-old — to her biological parents and handed her over to Jugendamt, the German youth services.

Rejecting the application of Dhara and Bhavesh Shah to return the child to them directly or at least hand her over to a third party, the Indian Welfare Services, the court awarded Ariha’s custody to Jugendamt and ruled that “the parents are no longer authorised to decide on the whereabouts of their child”.

On June 3, Ministry of External Affairs spokesperson Arindam Bagchi urged the German authorities “to do all that is necessary to send Ariha to India at the earliest, which is also her inalienable right as an Indian national”. Earlier in June, 59 MPs from 19 political parties, including the BJP, Congress, the Left and the Trinamool Congress, had written a joint letter to German Ambassador to India Philipp Ackermann and asked him to do everything possible to ensure that Ariha was repatriated to India at the earliest.

With the Central Youth Welfare Office of Berlin being appointed Ariha’s provisional guardian by the court, it said the authority shall decide on her whereabouts. The parents had initially sought Ariha’s custody but had withdrawn the request. They had then requested that the child be given to the Indian Welfare Services and to restore parental custody in full, with the understanding that she would be moved to the foster home run by Ashok Jain in Ahmedabad. The parents also planned to move back to India with her.

While denying custody to Ariha’s parents or the Indian Welfare Services, the court relied on two injuries that she had suffered — a head and back injury in April 2021 that happened while she was being bathed and a genital injury in September 2021. The court reasoned that parental care was to be denied so as to “avert the existing danger to the child”. The court noted that it had come to the conviction “that the mother and/or father (had) intentionally caused the serious genital injuries of the child” and that the parents were unable to “explain the events in question in a sufficiently consistent manner”.

The district court also ruled that the parents already have “the right and duty” for visitation twice a month “on the first and third Tuesday of each month for 60 minutes (of) accompanied contact”. In their petition on visitation, they had sought accompanied contact with their daughter every two days for 90 minutes each. Rejecting their request, the court reasoned that while continued contact with her parents was essential so that Ariha is able to form a constant picture of her parents in her further development, “on the other hand, the development of a bond was no longer in the foreground”. It also noted that the contact frequency should not be changed so as to “not cause any additional irritations in the child’s experience”. The court order noted that any change in visitation frequency or duration may have “a disturbing effect” on Ariha and that the child should be allowed to bond with her foster parents.

After the verdict, Ariha’s parents landed in New Delhi from Berlin on June 15 to appeal to the Indian government to seek her repatriation as she is an Indian citizen. “We plan to appeal in a higher court in Germany, but have little hope of getting a fair trial. We were expecting a verdict like this. They did not opine on the reports of experts who defended us, and just gave a one-sided verdict,” says Bhavesh.

The couple has approached the MEA with their request for Ariha’s repatriation. They said they did not know whether the Jugendamt will continue or permit visitation once Ariha turns 3-year-old. Dhara added, “And once we lose visitation, if we want to bring her back to India, Ariha herself may not remember us or understand what India is and may refuse to come back. The visitation that has been allowed now is supposed to apply until Ariha settles in with her new foster parents.”

Born in February 2021, Ariha was only seven months old when the Jugendamt took her into custody after she sustained an injury on her private parts. She was taken to a hospital by her parents. Following her treatment, youth services were notified. The German authorities had alleged that Ariha’s parents had harassed her. Bhavesh said the harassment was ruled out by the hospital in December 2021 and the prosecutor dropped criminal charges in connection with the same in February 2022.

Speaking to The Indian Express on June 8, Bhavesh had said, “Our visitations with Ariha since October 2021 were supervised by a social worker. We constantly received good reports from the social worker. As of September 2022, the social worker observed that the visitations were going well and that they may be increased. Relying on those reports, in September 2022, we went to the family court requesting that the frequency of our visitations should be increased to at least twice a week, but Jugendamt opposed the plea.”

He added, “Ultimately, the judge, taking the middle ground, directed bimonthly visitations — on the first and third Tuesdays — for an hour each. However, we learnt that Jugendamt had not informed the social worker about the court order and without these instructions, the social worker could not change our visitations. We started talking to the Indian Embassy. FInally, after communication between the Embassy and Jugendamt, the court-ordered bimonthly visitations were implemented in December 2022.”