New Delhi: A lower court in Pankow, Germany, has denied the custody of 28-month-old Baby A to her biological parents on the grounds that the child suffered deliberate injuries while in their care. With the German Youth Services, Jugendamt, given the full custody of the child, the Shahs are worried that her nationality may be changed, making her repatriation difficult.
In two judgments dated 13 June, one on the custody and the other regarding the parent’s visitation rights, the local family court rejected the parents’ application to return Baby A to them or hand her over to a third party, the Indian Welfare Services. The court also ruled that “the mother and/or father intentionally caused serious genital injuries of the child, when the child was in the care of the parents” and that “a return of the child to the parents’ household was currently out of the question”. ThePrint has accessed the verdicts.
Speaking to ThePrint over the phone, Baby A’s mother Dhara Shah said, “When Baby A’s visa, which was earlier dependent on her father Bhavesh, was extended last year, the child services made it an independent visa without informing us, even before the court had declared its verdict. Now, they have full custody and we are worried they will change her nationality permanently.”
Bhavesh Shah added, “We were expecting this outcome of the judgment as in a fair trial, both sides are treated equally and are heard. However, in this trial, which went on for 11 hours, the parents were only allowed to speak for an hour. We have been treated unfairly by the German court and will be appealing to a higher court.”
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Nothing on Baby A’s cultural heritage
Despite repeated requests by the Shahs to German authorities to ensure that Baby A’s connection with her cultural, religious and linguistic background is respected, the judgment makes no mention of protecting the child’s cultural heritage.
While rejecting the parents’ application, the court said, “The custodial parents are to be deprived of parental care to avert the existing danger to the child. The court is convinced that the best interests of the child are at risk…and that the best interests of the child will be impaired if the court does not intervene.”
As German Child Services has full custody of the child who is likely to be moved to a permanent foster home, “the development of a bond (between Baby A and her parents) was no longer in the foreground”, according to the judgment on the custody case.
The court order on visitation noted that while the parents’ visitation will remain the same during the transition period, it will be eventually reduced to once in every 1 to 2 months “at the most until the child reaches school age”.
To this, Dhara said, “Despite getting a positive report from the social worker who observed our visits with Baby A and recommended an increase in the time we spend with her by 30 minutes, the judge ruled to reduce our visits and did not even acknowledge this.” Currently, they get to visit her twice a month for 1 hour each.
The judgment was based on the two incidents of injuries to the child – a perineal or genital injury, and a head injury. ThePrint had earlier reported that the parents said the head injury was caused as the baby slipped after her oil massage and struck her head on a counter on 29 April 2021 when she was only two months old. The genital injury was caused while the child was playing without her diaper which was removed for a few hours every evening owing to diaper rash. This injury was aggravated by an invasive inspection by the paternal grandmother, the parents said.
However, ThePrint has now learnt that in 2021, the then seven-month-old Baby A also had to undergo numerous invasive tests such as vaginoscopy and cystoscopy, at the hospital as doctors suspected the parents of sexual abuse. The parents believe these invasive methods on the then seven-month-old baby were also responsible for further aggravating the injury.
These charges were later ruled out and the criminal investigation against the parents was closed without charges in February 2022. The head injury, as mentioned in the judgment, has been revealed to be a hairline fracture on the back of the skull which had been misdiagnosed by doctors earlier.
Psychologist assessment barely mentioned
An essential element of the case, due to which the judgment was given more than a year later, was the court-appointed psychologist’s report. In two hearings on 21 February and 31 March 2023, the psychologist who had attended the Shahs’ bi-monthly visits with the child, analysed their parenting skills in court for more than 9 hours.
According to the psychologist’s statement accessed by ThePrint, Baby A has three primary caregivers, her 62-year-old foster mother with whom she currently lives, and her parents. The psychologist stated, “I was able to observe that the child still has ties to both parents and does not feel threatened by them. I found that the attachment impulses to the parents were more pronounced than to the foster mother.”
The psychologist recommended “a custom-fit help which could look like one parent joining the child in a mother-child or father-child facility” while also suggesting that the parents’ “deficiencies towards satisfying the child’s needs” can be “remedied by public assistance measures”.
These recommendations were made so that the parents learnt certain parenting skills, such as discipline, and overcame the language barrier as Baby A currently only understands German.
However, the judgment does not mention these recommendations, referring to the psychologist’s assessment of family only once to support the statements of the medical experts, noting that the parents “pursue their own interests before those of the child”.
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Language barriers
As ThePrint had earlier reported, the child protection agency in 2021 had allegedly made the parents sign a document whose contents were in German, without giving them access to appropriate translators, before taking the child away.
The family has further claimed that while taking the parents’ statements, an Urdu translator was provided who did not appropriately translate Dhara’s statement that the child was in their care when the two injuries occurred. Dhara clarified that she said humare paas, meaning ‘with us i.e., the family’, when asked who Baby A was with at the time of the injuries, which the Urdu translator misunderstood as hum meaning ‘I or an individual’.
Based on the parents’ statements, the genital injury took place while the child was with her grandmother rather than her mother. Therefore, this wrongful translation further complicated the trial, with German medical evaluators noting that the parents were unable to clearly explain how the injuries took place.
The court has directed the Shahs to pay roughly 12,000 EUR or Rs 11 lakh for the complete trial as well for fostering Baby A in the German Child Service.
(Edited by Smriti Sinha)
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