Rethinking the Principle of Parens Patriae: The Ariha Shah Case from a Cultural and Child Rights Perspective

Abstract

The aim of the work is to critically examine the encounters of an Indian child with the Jugendamt (‘Youth Office’) in Germany. The article examines the tension between protection and alienation of the child from its family and culture, questioning whether migrant, non-German children in such systems have rights, and if so what could they be? Through interviews with the family and document analysis, the study aims to establish whether the progression of the case from the position of the child has been in accordance with various United Nations human rights treaties such as the Convention on the Rights of the Child. By examining the case from a cultural, social justice and children’s rights perspective, this article concludes that unless steps are taken to dismantle the power and privilege dynamics of such institutions, children of ethnic communities will continue to be at risk of being separated from their families, in addition to being at risk of losing a variety of their rights, including the right to their cultural and religious identity.

Introduction

The aim of this study is to examine the experiences of an Indian child, Ariha Shah, with the Youth Office in Germany. The subject position of this article is not to debate whether or not the Youth Office should have intervened, but rather to appreciate the complexities of this case within the cultural, social, political and rights landscape within which the battle for Ariha Shah’s custody and repatriation is taking place. In March 2023, the release of the Bollywood film Mrs. Chatterjee vs. Norway put a spotlight on the issue of Indian children in the child welfare system of wealthy nations of the Global North. The movie, which is based on the autobiography of Sagarika Bhattacharya, leads to a discussion on the role of culture when it comes to experiences of migrant families with the Child Welfare System of the Global North/Europe. The children in the Norwegian case were eventually repatriated to India, following a diplomatic intervention. The release of the film though was not free of controversy, as the Norwegian Ambassador to India, Hans Jacob Frydenlund, criticised it in an op-ed for ‘containing factual inaccuracies and misrepresentations of Norway’s policies on family life’ (Singh, 2023), further stating that the primary reason for the case as being ‘cultural differences’ is ‘false’. The release of the film has also set the context for discussion of the Ariha Shah’s case from a cultural, political and child rights perspective.

Race and Racism: Lived Experience at the Margins

Established in the period between the wars in the erstwhile Weimar Republic by the Reich Youth Welfare Act, the Youth Office functions at the level of the state. The organisation of the Youth Office is not centralised, thus giving each Youth Office the power to function as an independent unit outside of Federal-level influence and control. While the role of the Youth Office is to ensure the wellbeing of children, it is not an organisation that has remained free of controversy and harsh criticism both within Germany, as well as at the European Court of Human Rights, and the United Nations Human Right Council. Although the scope of this article doesn’t allow for a detailed analysis of some of these petitions, there have been cases in the recent past that have once again highlighted concerns in the Youth Office’s handling of children from minority communities. For example, in the recent Furdui family case, seven children including a baby were removed from a Romanian family with children between the ages of 1 and 16 and placed in different foster cares. The Youth Office responsible received criticism for their handling of this case for numerous reasons but also for the fact that the seven siblings were separated from each other while under care. Several countries in the European Union such as Belgium have laws that prevent sibling separation, which is also supported by Article 16 of the United Nations Convention on the Rights of the Child (CRC) (United Nations, 1989) and the United Nations General Assembly ‘Guidelines for Alternative Care for Children’ Resolution 64/142 (UN General Assembly (UNGA), 2010). This is an acknowledged problem within the child welfare system (Monk & Macvarish, 2018), as well as one for which there currently seems to be no statistics within the Youth Office: meaning, of all the children under the care of the Youth Office currently, how many are siblings and how many of the siblings are together? In March of 2021, activists from the Roma Antidiscrimination Network and their allies organised a protest outside the Youth Office in Bonn that was responsible for seven-year-old Denis to be taken away from his sole caregiver since birth, his Grandfather Milan (Roma Antidiscrimination Network, 2021). Denis and his Grandfather Milan had moved to Germany from the Czech Republic, and the boy was picked up from Kindergarten and taken away by the Youth Office due to his inability to speak adequate German (European Roma Rights Center, 2021). The issue of minority community children under the care of the Youth Office is a sensitive one also for the large Turkish diaspora in Germany, with Turkish Lawyer and Member of National Assembly of Turkey stating that they were able to reunite 200 Turkish/Turkish descent children in Germany with their biological parents in the past year (Daily Sabah, 2022). Further, Turkey also plans on having ‘Family Attaches’ in Germany and in other places in Europe in order to help Turkish children that are taken away by the authorities. The experiences of each of these families and children from minority communities in their encounters with the Youth Office share a few similarities. However, within the context of this article, the relevant question to be asking is this – of all the children taken under the care of the Youth Office, how many are children from ethnic minority communities? This question is particularly relevant and important, in light of the 2022 report from the European Commission titled ‘Institutioneller Rassismus in Behörden’ (translated as Institutional Racism in Public Authorities) which showed racist ideologies to be ‘structurally anchored and institutionally (re)produced’ (Graevskaia et al., 2022). Due to the nation’s history, there is a deep unease around the topic of collecting data/census based on race and ethnicity in Germany. It is virtually impossible to tell what percentage of children who have been separated from their families are from minority communities, as well as the percentage representation of each community’s children in institutionalised care and so on. One of the few ways of examining minority community experiences with the Youth Office for now remains piecing together narratives emerging from media and self-advocacy groups. Although of course Germany has shown deep reflection, remorse and a commitment when it comes to reconciling its national conscience to its racist past, this has directly and ironically led to disregarding the realities of its racist present (Fuechtner, 2013).

In presenting the long battle of one family ‘of migration background’ with the child welfare system, this article aims to highlight that in the cross-continental battle that ensued between all the adults around Ariha Shah, it is hard to imagine how the unfolding of events could, in fact, be in Ariha’s Best Interest as set out in Article 12 of the CRC (United Nations, 1989).

The research questions arising from this case study are the following:

Could the Shah family case serve as an example of the systemic, cultural, social and political challenges faced by families of migration background/from the Global South in the Child Welfare Systems of wealthy nations of the Global North?

Has there been a violation of any of Ariha’s rights as per the various U.N. Conventions that the Federal Republic of Germany has ratified?

Can there be a universal understanding of the Best Interest principle, Article 3 of the United Nations Convention on the Rights of the Child (United Nations, 1989)?

Methodology

Research Design and Data Analysis

This article uses the case study approach, given that the issues surrounding Ariha Shah’s encounter with the Youth Office are as complex as multi-faceted. Such a study of just one immigrant child’s presence in the welfare system has had a ripple effect into various disciplines of study including children’s rights, lived experience of minority communities, child psychology, sociology and so on. The intent of the article has been to go in-depth into as many of these issues as possible while attempting to show different perspectives on the situation at hand. Data collection included narrative-style interviews with both parents that began in November 2022 and took place over a period of over nine months. Notes and highlights were prepared during and after each talk and the interviews were not recorded due to its sensitive nature, as per the request of the Shahs. The parents made themselves available to answer the questions and fill gaps of knowledge at all points of the study.

Other forms of data collection included reading and collecting information through news channels, as well as reading, analysing and verifying data collected from the interviews against written records and documentation. Once a draft of the case report was completed, some key issues emerged. An analysis of the main themes was conducted in order to contextualise the case, based on which the interpretation and intrinsic learning emerged. While conceptualising the methodology, I have referred to the texts ‘Qualitative inquiry & research design’ (Creswell & Poth, 2018), ‘The art of case study research’, (Stake, 1995) and ‘Narrative inquiry: Experience and story in qualitative research’ (Clandinin, & Connelly, 2004).

Ethical Aspects of the Study

Information provided in the article has been verified against written documentation wherever possible, and indications made where such verifications were challenging/verbal. The question unfolding throughout the investigation, legal battle and the writing of this particular article, which is that of the Best Interest of Ariha Shah, is of course only her Best Interest as perceived by the numerous adults around her. As I attempt to put together some pieces of her narrative and history, I have presented only the parts that are relevant to the topic of this article. I have used the term migrant, ethnic and minority community in a very broad sense to indicate people who have the so-called ‘Migrationshintergrund’, or are of migration background in Germany, which is often also used as a euphemism for non-White, non-(native) German speaking, and/or non-Christian. While critiquing the placement of a child with no known disabilities in an institution for disabled children, the statements are only meant to suggest that the needs of disabled and non-disabled young children are different, as are the conditions of care, their pedagogic approaches and goals of either institutions.

Informed Consent Statement

The parents were made aware of the purpose and intention of the interviews and this study, and what the research process would entail. They were made aware that participation was voluntary, and that they didn’t have to answer questions if they did not want to. During the course of the interviews, there was a discussion on whether the study shall be anonymised or not. The parents agreed to the study being de-anonymised, also with the intention of Ariha having access to a version of her history from ‘the other side’.

Analysis

Case Report

On 17 September 2021, the parents of Ariha Shah had taken her to her paediatrician, as they had noticed bleeding while changing her diaper. The paediatrician had checked Ariha and said that there was no reason for concern, but that they shall take her to the hospital if they were worried as they didn’t have all the instruments for checking her. The parents took her to the hospital, where multiple physicians examined Ariha including a paediatric Surgeon. Ariha was sent back home as there was no active bleeding, and given a date for a follow-up check. The report from the hospital stated that Ariha was experiencing ‘hormonal bleeding’. During the time of the incident, the paternal grandparents of Ariha had been visiting and staying with the Shahs in their flat in Berlin, as they had not had the chance to meet with the new baby (then a seven month old) due to COVID travel restrictions. On 21 September 2021, the Shahs took Ariha back to the hospital for the scheduled follow-up check. This time, there was a new physician present, and this is where the encounters of Family Shah with the legal and child welfare system in Germany began.

As COVID restrictions were still in place during the time of the incident, only Ariha’s mother was able to be present with the child in the hospital during the follow-up check. The mother is native Gujarati speaking, and both the parents are from the Jain community in India that follows principles of non-violence, including following a strict vegetarian diet. During the visitation, the mother was unable to understand much of what was being said to her in the largely German-speaking hospital, and signed whatever papers were handed to her, as she thought it was best for the child so she could receive any treatment required. Sexual abuse was suspected and the Youth Office was called in, who found a temporary foster parent who took the child away after Ariha underwent a procedure. However, despite repeatedly requesting for the medical files in order to know what the allegations against them were, and what the reason for the procedure was, it was only after several requests over months that the parents received medical reports from the hospital. The parents have further noted that the file they received was incomplete. Thus, the parents began fighting their legal battle without full knowledge of the allegations against them, and with some doubts arising as to whether a surgery was really required.

Until this day, the parents maintain that they do not know how the child could have sustained an injury, apart from the fact that the then visiting paternal grandmother had confessed to have hurt Ariha while changing her diaper. Although there were four people present at the time of the incident who were taking care of Ariha, only the parents were investigated, and subsequently all charges against them were dropped, including allegations of sexual abuse. Now, it was a matter of fighting a civil case in the Family Court, for Ariha’s custody and subsequently for repatriation.

Ariha and her parents are all citizens of the Republic of India. Her parents moved to Germany as Ariha’s father found a job there, and consequently Ariha was born to them in Germany during the COVID-19 pandemic.

Politics, Food Culture and the Different Shades of Childhood

Culinary culture of migrant/ethnic communities ‘is a mode of cultural production in the present that has recourse in the past’ (Kirshenblatt-Gimblett, 1995). These micro-scale food choices bleed the personal into political, where the symbols of ‘culinary capital’ (D’Sylva & Began 2011) very easily become a site for class struggle that often marks them as outsiders in their host society (Parasecoli, 2014). Food culture is inherently linked to one’s personal identity, and an individual’s connection to their community. This deeply personal and sociocultural space is one that is also of high importance to the Jain community and diaspora. One of the tenets of Jainism is that of leading a life of Ahimsa or non-violence. For Jain practitioners and followers, this also means following a strict vegetarian diet, as well as not eating root vegetables such as onions and potatoes, so that no tiny life forms are injured when the plant is pulled out, respecting the bulb as a lifeform that can continue to sprout, and not killing the entire plant by uprooting it. Jainism is one of the oldest religions of the world, said to have emerged from the same roots as Buddhism around the sixth century B.C. Of course while one can argue or contemplate about the ease and possibilities for sustaining a strict Jain diet in Western Europe, it is also understandable that this core religious belief and way of life for Jain people for well over centuries is one that deserves respect, and is protected under by Article 4 of the Basic Law of Germany (Basic Law for the Federal Republic of Germany, 1949).

The right to preservation of cultural and religious identity is also enshrined in the Universal Declaration of Human Rights Article 18 (United Nations, 1948), as well as Article 30 of the CRC which states that a child belonging to a minority religious, linguistic or ethnic community in a State ‘shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language’ (United Nations, 1989). In addition, Article 20 (1) and (3) of the CRC also states that for a child that is temporarily or permanently deprived of her family environment, ‘due regard shall be placed to the continuation of the child’s upbringing and to the child’s ethnic, religious, cultural, and linguistic background’ inter alai, in foster care, adoption or in a suitable institution (United Nations, 1989). Ariha’s parents have requested for her religious and cultural rights to be preserved, even if it means having her put on a vegetarian diet instead of a Jain diet, and for there to be continuation of her upbringing according to their religious and cultural beliefs. The authorities responded to the requests by stating that the Jain diet was in fact not according to the World Health Organisation guidelines, and was a ‘health hazard’ for a small child. This raises of course several interesting questions. Commenting on whether or not following a Jain diet in foster care is feasible is vastly different from stating that the Jain diet is a health hazard for small children.

Could this mean a precedent can be set by the authorities in Germany on what diets are appropriate for ethnic minority children in Germany, non-compliance to which could lead to removal on grounds of the native diet being perceived as a ‘health hazard’? In addition, the creation of a binary of ‘good’ and ‘bad’ diets by an authority in Western Europe further displays Eurocentricism in nutrition ‘standards’, while disregarding the fact that different cultures and indigenous diets have subjective standards depending on culture, climate, region, religion and so on (Khanna, 2020). The ‘hidden subjectivities’ of nutritional sciences, which as a discipline has a background in European culture, when left unconfronted through critical consideration and intercultural reflection results in the diverse food of native and indigenous people to thusly be dismissed as ‘unscientific’, crossing epistemic, cultural and religious boundaries (Hassel, 2014). Thus, the example on the views of native diets can be used not just as an example to critically reflect upon Eurocentric standpoints but can also serve as a site to begin a larger and much needed discussion on pursuing the complexities and nuances of pursuing decolonising work within social work. Employing such a decolonial approach to the child welfare system in the context of the migrant, ethnic and native children, it also aims to care for would require addressing these very unequal power relations between people, nations and cultures, which have historically been established and structurally maintained for a people/nation to oppress/dominate the other. The relevance and importance of decolonising social work and the child welfare system is to both overcome detrimental aspects of colonialism and its ideologies of racial superiority as well as regaining political rights (Gray et al., 2016) of those whose lives are spent at the peripheries of childhood and society.

Rethinking Parens Patriae: Child, State and the Boundaries of Childhood

While under foster care, it was apparent that Ariha had little to no contact with anyone from her religious or cultural background, save the one-hour long monthly and later bi-monthly meeting with her parents. Since the time that Ariha has been removed, the Embassy of the Republic of India in Berlin has been demanding for one of their citizens to be granted consular access, in accordance with the Vienna Convention on Consular Relations (United Nations, 1963), which Germany is also a signatory to. Until the time of writing this article, Ariha has had no consular access whereas it can be argued that not only is consular access her right but could also act as a way of providing her a regular visitor from her home country which could in itself also be soothing, comforting and familiar to her. Rule 62 of the Mandela Rules, also known as the United Nations Standard Minimum Rules for the Treatment of Prisoners, states that ‘foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong’ (UN General Assembly (UNGA), 2016), which is a fundamental principle of international human rights law towards the recognition and promotion of human dignity.

In addition, the Embassy of India in Berlin had also stepped in and suggested to the Youth Office to take Ariha to the Tagore Center in Berlin, which has a mandate to foster Indo-German cultural relations, so that she can immerse in her culture as well as meet with elders, children and families of the Indian community. The request of the Indian Embassy was also not considered. This raises of course a much larger question, and one that is of great importance to immigrant communities in the same situation as the Shahs: what does such a continuation of a child’s upbringing in accordance to their religious, cultural and linguistic background tangibly look like? In situations where there is a clear violation of Article 20(3) of the UNCRC, shall efforts of national representatives or community elders that help the child maintain relations within the community be considered? Maintaining relations to one’s religious and cultural origins is also important of course for development of personality, identity formation and development of a sense of self. However, to holistically understand the implications of a denial for such considerations adds a level of complexity from the position of the child. When a child is removed from its home and taken into the care of the State, such removals happen very quickly. For Ariha, this happened in a hospital room. Children are removed from their homes, their beds, their parents, neighbours and friends, their toys, books, grandparents, siblings and so on abruptly from one day to the other. It is interesting academically and pedagogically, because when a child is about to begin Kindergarten in Germany, a transition phase called the ‘Eingewöhungsphase’ or settling in phase is followed. The beginning of the child’s journey into (voluntary) day care system is viewed as a major milestone for the child, where the child is being challenged to a new environment, rules and material space. This settling in period could last anywhere between a few days to a few weeks depending on the child’s adaptation to the new environment, in which time the parent(s) is meant to be present at the kindergarten for a few minutes to a few hours every day to help the child settle in. During this phase, initially the child is in kindergarten only for a very short period of time with the parent present in the room, eventually leading up to the parent leaving the room for a few minutes and eventually for longer stretches of time every day. So when these two scenarios are viewed side by side, where a child is removed abruptly from everything familiar versus the image of an ideal childhood where a child is supported into a place of care, it is apparent that there are, in fact, different types of childhoods under ‘care’. Independent of whether or not there is a legitimate reason for removal of the child and if it is the best way, State-intervention into governing childhoods unwittingly becomes a system that creates its own class struggle. One can only imagine the double struggle and multiplicities of vulnerabilities when one is an ethnic minority child in the Child Welfare System, growing up not just in the peripheries of society and the unfamiliar, but in the peripheries of childhood itself.

That is where sensitivity at the point of immersion that cases like that of Ariha Shah demand, while recognising culturally specific notions of childhood under care, and in trying to imagine why Ariha Shah does not have access to the ideal childhood possibly in the care of her community, but rather one where she has been removed from her family, abruptly to a foster parent, and once more rather abruptly since May 2023 to a children’s institution outside the Federal State of residence of her parents. It can be argued that in such a scenario, the State has the ultimate power as Parens Patriae to decide who has access to which type of childhood, creating a child-sized version of an Orwellian scenario where some children have more rights than the others, creating hierarchies within the governance of childhood itself.

Trauma and Mental Health of Institutionalised Small Children: How Much Do We Really Know?

In May 2023, Ariha’s parents were informed that she would soon be moved from the care of the foster parent, with whom she had managed to form some sort of a fragile bond, to a children’s institution. Following this, from one day to the other, Ariha was moved, and the foster parent was no longer responsible for her care and wellbeing. One cannot imagine how a two-year-old child would understand a primary caregiver once again disappearing. The move was abrupt and quick, with no accommodation made for the foster parent to be present for Ariha’s settling in phase. Although the foster parent was only to temporarily care for Ariha, the retirement of the foster parent was known well ahead of time. Therefore, the argument cannot be made that the move to the institution had to be carried out due to unforeseen circumstances. Ariha’s impulses towards her parents was stronger than towards the foster parent. This was also observed by the court-appointed psychologist. Therefore, it was recommended to move Ariha to a parent-child facility where one of the parents could live with Ariha under supervision, also ensuring that there was continuity in her caregivers. In case the parents were unwilling to comply to such a move, it was recommended to move her to permanent foster care. The parents had no objection going to a parent child facility with Ariha. The reason for the abrupt move to an institution for children with ‘special needs’ was due to an ‘attachment disorder’. It was observed that Ariha seems to have had a hard time forming a strong bond with her foster parent. In the meanwhile, the social workers who were present during the visitations recommended that the parents be allowed to have unsupervised visits with Ariha as not only had the child maintained a strong bond with her parents but seemed to also be enjoying the routine ceremonies of their meetings like the songs they would sing for her, and the Indian food and snacks that the mother would freshly cook and bring for Ariha.

Her parents have said that their now German-speaking toddler expressed a clear interest in either leaving with both parents, or for the parents to leave with her once the visitation was over. From a child rights perspective, it could be argued that Ariha was expressing her agency, as per Article 12 of the UNCRC (United Nations, 1989). In addition, the question of Ariha’s difficulties in forming a strong bond with the foster parent being classified in a two-year-old child as an ‘attachment disorder’ is also one that attachment theorists seem to distance themselves from. In a 2021 paper serving as a consensus statement titled ‘Attachment goes to court: Child protection and custody issues’, psychologists examine the family court applications of attachment theory in the context of the best interest principle and the misunderstandings and misapplications that it can result in especially in family court and child protection settings (Forslund et al., 2022). The research adds that such predictive labels and diagnoses of mental health professionals may lack validity, and the interpretation of such a diagnosis being inherently complicated—resulting in courts admitting ‘evidence’ also due to judges not being able to evaluate labels and methods which may be of inadequate scientific validity (Emery et al., 2005; Neal et al., 2019; Scott & Emery, 2014). What this could imply in the context of Ariha Shah’s case when the label is used as a justification for moving her as a two-year-old child to an institution for special needs children when there are in fact ample studies indicating the contrary—that attachment disorder is not atypical for children who have experienced early trauma in their caregiving history and that early maltreatment and institutionalisation is in fact what causes attachment problems to be observed in the first place (Oliveira et al., 2023; van IJzendoorn et al., 2018; Woolgar & Scott, 2014). To be conducted as a diagnostic by specially trained coders, insecure-disorganised attachment behaviour can be due to ‘maltreatment in child protection services’, or based on conflict/confusion/apprehension under conditions of mild/moderate alarm that many ‘normally’ organised children can display when stressed enough and most substantially do not have to be an indication of either maltreatment or psychopathology (Forslund et al., 2022; Main & Hesse, 1990; Main & Solomon, 1986; Schuengel et al., 1999; Shemmings & Shemmings, 2011; Wilkins, 2012). Further, there are also studies concluding that attachment theory itself which was established around the works of John Bowlby after WWII does not serve native and indigenous communities who have their own way of forming attachment, kinship and being within their community. Based on highly Eurocentric ideas of a normative nuclear family, attachment theory disregards that in traditional, native and indigenous cultures, kinship care and community members play a large role in raising the child—thus, a Western, Eurocentric application of Attachment Theory on native, indigenous and traditional populations is akin to a colonial intervention on indigenous populations (Choate & Tortorelli, 2022; Keller & Chaudhary, 2017; Neckoway et al., 2003; Rosabal-Coto et al., 2017).

Discussion and Conclusion

In June 2023, Ariha Shah’s custody was granted to the Youth Office. The Youth Office in Germany has regularly been criticised to have unlimited power with ‘space outside the law’ (Bündnis RECHTE für Kinder e. V., 2009). Over the years, there have been several petitions filed against the human rights violations by the Youth Office, including the European Parliament Committee on Petitions Mission Report from May 2023 that acknowledges the Youth Office being a ‘long-standing issue for the Committee on Petitions (PETI)’ (European Parliament, 2023). The human rights violations of the Youth Office in Germany has also been criticised by several E.U. and non-E.U. countries, and has been the subject of discussion of several NGOs through Universal Periodic Review submissions at the U.N. Human Rights Council (Penttilä et al., 2018; UN General Assembly (UNGA), 2013). These are just few examples of many. It can further be argues that Article 3(1), the best interest principle of the CRC (United Nations, 1989), enabled by attachment theory has been used to justify the movement of a two year old with no known physical or intellectual impairments save ‘attachment disorder’ to an institution for children with special needs. This in a State that she is not a citizen despite repeated requests of the Republic of India to have one of their youngest citizens repatriated back. In addition, the best interest principle when not understood within specifics of culture and context gives courts and Youth Offices the freedom and discretion to decide what according to them is the best interest of the child – thus setting Article 3(1) of the CRC (United Nations, 1989), as a site for further conflict both within this case and in wider judicial debates and family law praxis (Forslund et al., 2022; Kelly & Lamb, 2000). Here, the best interest principle has also been used to assert that the Youth Offices responsible are the only ones who are capable of raising Ariha Shah, and the best foreseeable place for them to do so is a children’s institution somewhere in Germany.

Ariha’s placement in an institution is also a violation of Point 22 of the United Nations General Assembly Guidelines for the Alternative Care for Children that states alternative care for children under the age of three ‘should be provided in family-based settings’ (UN General Assembly (UNGA), 2010). In June 2023, the Spokesperson for Ministry of Foreign Affairs for the Republic of India, Mr. Arindam Bagchi, in a press conference requested the Federal Republic of Germany to repatriate Ariha Shah, as it was her ‘inalienable right’ to be in her linguistic, religious, cultural and social environment (Express News Service, 2023). Further, Mr. Bagchi also announced that a foster family from the Jain community had been identified for Ariha’s care in India, and a home study of the family had also been conducted. In his compelling work on cultural psychology and psychological anthropology, Clifford Geertz states that above all, Europeans and Americans imagine themselves as individuals (Geertz, 1974) whereas Hindus for instance (a religion that Jainism has many similarities to) perceive themselves as being made and formed through relationships, or as the Anthropologist McKim Marriott calls it, as ‘dvidual’ (Marriott, 1976).

Non-compliance with the Indian government’s request to repatriate Ariha is thus also non-compliance to the rights of her kinship group and community to care for Ariha. It is a failure to protect the cultural rights of minority communities. It is Ariha Shah’s inalienable right to be free, in accordance to Article 11(1) of the CRC (‘State parties shall take measures to combat the illicit transfer and non-return of children abroad’, (United Nations, 1989), as well as Article 37 of the same convention (United Nations, 1989), Article 5 of the European Convention on Human Rights (‘Everyone has the right to liberty and security of person’) (Council of Europe, 1950), Article 9 of the Universal Declaration of Human Rights (‘No one shall be subject to arbitrary arrest, detention, or exile’) (United Nations, 1948) and a violation of Article 12 (right to liberty of movement and freedom to choose her residence) of the United Nations Convention on Civil and Political Rights (United Nations, 1966). It is also highly challenging to imagine how Ariha’s placement in an institution for handicap children could be in her best interest where there is no indication of her having a physical or cognitive disability. In addition, the abrupt move to the institution showed a lack of sensitivity to Ariha’s needs above all to a young child who has already undergone considerable trauma and loss. It raises questions also for medical and mental health practitioners in Germany, whether this case shall set a precedent in identifying attachment disorder as a disability, where there is no indication of other impairments both physical and cognitive. Not allowing Ariha to have consular access is a violation of Article 36 of the Vienna Convention on Consular Relations (United Nations, 1963), as well as Article 6(3) of the Convention against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment (United Nations, 1984, 1987). Ariha Shah has committed no crime. Since being moved to the children’s institution, the court’s visitation order has not been followed, with the last visit being on 20 July 2023, with no further visits being granted for over two months, with the reason being cited as ‘lack of staff availability’ to bring Ariha to the visits. Through the increased alienation between child and parents, there is a clear refusal to make a distinction between punishment of the child and that of the parents, and whether this attempt at reformation is aimed at moulding the so-called deviant children into redeemed adulthood, or to recover deviant quasi-adults into a redeemed childhood (Sen, 2005)?

Of course, while it is true that Ariha’s case is just one individual’s complex encounter as an ethnic minority child in the welfare system, it is also a fact that structural discrimination infiltrates all levels of society. Further, abolitionist scholars such as Alan Dettlaff argue for a collective movement aimed towards the abolishing of the child welfare system, also citing racial disproportionality, while providing a historical background to argue how the system is built upon hereto-patriarchal notions of White supremacy, which devalues the lived experience of minority communities (Dettlaff et al., 2020; Teasley et al., 2022). The French social historian Philippe Aries in his work ‘Centuries of Childhood’ observed that childhood is a term that is socially constructed and the notion of child and childhood is both historically and culturally conditioned (Ariès Philippe, 1962). As Ariha grows up, the subjectship of her childhood continues to evolve into a national, political and cultural project. In addition to the various protests in India and Germany calling for her repatriation, there were also protests during the G20 Summit in India in September 2023, calling not just for Ariha’s release from the control of the Jugendamt but also raising awareness by activists in India on the child protection systems of the Global North, which resulted in social media trends such as ‘#Supportnotseparation’ and ‘#G20GiveOurKidsBack’ for targeting children of migration background, low-income families as well as those from ‘other’ cultural backgrounds (Mathur, 2023).

In light of the violations of Ariha’s human rights, how does one demand greater accountability for prejudice at a level that addresses the systemic, structural and historical functioning of institutions such as the child welfare system, in a way that produces a socially just present? And, most importantly, what would a rights-based, culturally sensitive, socially just present look like for Ariha? Ariha’s case, in addition to all that it symbolically represents, is also a site for confronting the Eurocentricism of social work and the welfare system, and provides a rich background for breaking down the meaning of the Universal/Global Child in the Global North versus the nature of native children in its institutions and places of care: a site of critical tension and epistemic challenges in theorising childhood and social work undoubtedly for all involved. For as long as some childhoods continue to be lived out at the margins, the political struggle must continue.

To conclude, borrowing from Cosimo Zene in ‘Subalterns and Dalits in Gramsci and Ambedkar’, ‘…for both Gramsci and Ambedkar the “inclusion of the excluded” in civil, democratic society is not an appendix to political engagement but belongs at its very core, if our continuous effort for “being human” (see Rao, 2009) is the task that humanity sets itself’ (Zene, 2013).