New Delhi: Senior retired judges have joined Rajya Sabha MPs in the case of Indian girl Baby A at the centre of a custody battle in Germany as well as other such children, saying their return to home country is a “more humane and compassionate solution”.
Four former Supreme Court judges and two former high court chief justices, among others, Tuesday wrote to the G20 member states as well as international organisations such as the UN and the ASEAN, urging for the repatriation of children like Baby A, whose custody were taken over from their parents by state child agencies in Western Europe, the UK, North America, Australia and New Zealand.
The nine signatories include A.P. Shah, former Chief Justice of Delhi HC, S. Muralidhar, former Chief Justice of Orissa HC, and former SC judges Ruma Pal, Vikramajit Sen, A.K. Sikri, and Deepak Gupta.
‘Responsibility of Indian govt’
Exploring the condition of children removed from parental custody, the former judges recognise the threat these foreign child services pose to the child’s identity.
“These children are placed with foster carers who are native to the country of residence and without any ethnic or cultural links with the child’s country of origin. As a consequence, these children lose their identity and are unable to develop any bonds with their country of origin or their extended families. They age out of foster care in a state of double alienation – they are not citizens of the country of residence, and have no substantial ties with their country of origin,” they said.
The former judges believe that such children are “the responsibility of the Indian government” according to international laws and therefore, suggest that “a return to a safe placement in the home country is a more humane and compassionate solution”.
Article 3(1) of the UN Convention on Convention on the Rights of the Child (UNCRC) states that ‘best interests of the child are the primary consideration’ for all child welfare agencies, indicating that any child services authority or family court in any country, has the authority to consider repatriation of a foster child to its home country, if this would serve its best interests.
Moreover, Article 8(1), the UNCRC protects the child’s right to the preservation of their identity including his/her nationality, language, culture and more, noting that “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
Numerous other international laws such as Article 14 & 15 of the UNCRC, Right of Return to India under Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) also protect a child’s right to be repatriated to their native country as well as protect their identity.
Citing India’s robust child protection system, with its network of district-level Child Welfare Committees, the signatories believe that Baby A’s repatriation “respects the German system’s assessment of the parents, while enabling the child to at least preserve her nationality and heritage.”
In the past decade, many such cases of Indian children being removed from their parents’ custody in foreign countries have come to the limelight. These include the 2011 Norway case, where two Indian children were taken away from their parents by the Norway child welfare services and put in foster care. India had protested the move and the children were returned in 2012 to their families.
Another such case gathered public attention recently where an NRI woman died by suicide in Belagavi last month over her family’s child custody battle in Australia. Both her children were taken away by New South Wales child welfare officials over allegations of ‘improper care’.
Case of Baby A
In June, ThePrint reported that the parents of Baby A after more than two years of legal battle lost their child’s custody to German Youth Services, Jugendamt.
The case revolves around a 2021 genital injury due to which the child was removed from parental custody by German Youth Services over sexual abuse allegations. However, the criminal investigation against the parents was closed in 2022.
In the 13 June judgement, citing “the physical and thus at the same time psychological abuse of the child by the mother and/or father”, a Berlin court said the “custodial parents are to be deprived of parental care to avert the existing danger to the child”.
“The child has experienced unspeakable harshness in her life. My ministry is working very closely with the MEA (Ministry of External Affairs) to ensure the Indianness of the child is safeguarded,” German ambassador Philipp Ackermann had told ThePrint back then.
Last month, the MEA said it summoned the German ambassador to express concern over the child’s condition in foster care and added that the case was given “high priority” status.
Over the past few months, the parents have expressed various concerns to ThePrint regarding the welfare of Baby A, from fears of her nationality being changed, numerous cancelled visits due to logistical issues, the child’s transfer to a institution for children with mental illness before the court gave its judgement, among others.
(Edited by Tony Rai)
Also Read: Baby A’s parents to appeal Berlin court verdict denying them custody