This article has been authored by Shefali Agarwal, a fifth year law student at National Law University Odisha.
A person’s age is their identity and recognition which entails them to a certain set of rights and liabilities. Especially in cases of criminal trials and migration, age becomes an important factor for liability and status determination. Children or minors who have crossed their state’s borders without identity proof become subject to the host states’ laws and procedures which are incomprehensible to them. Age determination becomes extremely significant for the host states as minors and adults’ rights vary greatly. Where a minor is entitled to appointment of guardians, legal protection, health and care among others, and is more vulnerable, an adult is not entitled to such rights.
The Convention on the Rights of the Child (CRC) acknowledges the fact that children have rights and states have the responsibility to protect it. Articles 2 and 3 of the Convention mandate States to ensure rights to every child in their jurisdiction and to prioritise the best interest of them in every decision taken in their regard.
The General Comments (GC) of the Committee elaborates on the principles of best interest and assessment of children. The GC defines ‘Unaccompanied children’ (also called unaccompanied minors) as “children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.”
Considerations for assessment
The European Committee defines ‘age assessment’ as “a process by which authorities seek to establish the chronological age, or age range, of a person, or determine whether an individual is an adult or a child. Currently there is no process of assessment, medical or otherwise, which can determine the exact age of an individual with 100% accuracy.”
The process which states adopt to assess the age of the individual leads to violation of basic human rights: right of being heard, privacy, health, and legal assistance. Medical and forensics tests like bone-age, dental-age and radiology are performed on children which has an adverse impact on their health. These tests and appearances are given primacy over the documented age just to avoid liabilities even when there are ample studies which show that these tests are just estimates and not conclusive.
The unaccompanied minors with standard proofs are denied from being recognised based on the appearance or on the discretion of the authorities. Therefore, the authorities have been questioned before the court of law as to their judgment of the individual. When a child is coerced to undergo medical tests to certify his age and since he doesn’t get proper legal assistance, he either has to accept the test or be deprived of his human rights.
The EASO Practical Guide is the best guide on age assessment as it is specifically designed to support, explain and uphold the rights of the child in the age assessment process. It presents a flowchart which shows the entire overview of the methods, the time of adoption of the methods, and the consideration of circumstances in each stage. It has provided for a check-list form which balances the best interest and age determination processes, and has also given recommendations. Necessarily, a well-rounded process for the assessment will ensure better protection of rights.
Benefit of doubt
Though the CRC does not directly talk about age-assessments, the committee has included age-assessment in the identification process. The perusal of paragraph 31(i) of the GC reveals the procedure which should be considered for the initial assessment which includes age-assessments. It states that the child should be identified at the earliest and the assessment procedure should be safe, scientific and gender-sensitive. It should not be based on the physical appearance only but also his psychological maturity and be respectful towards the physical integrity and dignity of the child.
Emphasising further on the rights of the child being recognised, it states the most important principle which is that of “benefit of doubt.” This principle protects the individual in case of uncertainty over the result of age-assessment. It presumes the individual to be treated as a child in cases where there is a possibility of the same.
Recast Asylum Procedure Directive which the European States follow for granting international protection in Article 25.5 guarantees the unaccompanied minor certain benefits. It allows member states to use medical examinations for age determination when they are in doubt even after taking into account the relevant indicators within the application for international protection. Following further doubts, members are to assume the minority of the applicant. Medical examinations conducted must be the least intrusive method and shall protect the individual’s dignity. It should be examined by a qualified professional.
As per Vivien Feltz’s Article, “If there is a chance that the individual is a child, he or she should be treated as such. A decision to deny international protection should not be based solely on a child’s refusal to undergo a medical examination. If doubts remain once the results of the tests are known and margins of error are taken into account, then the minority of the child should be presumed.”
Alternatives for assessment
Age assessments, at least via medical procedures, should be a last resort in cases of serious doubts and not a routine practice. Situations of serious doubts occur when there is discrepancy in physical appearance and mental impression leading to ambiguity; inconsistency between the documented age and the age as declared by the person himself or when there is no identity document or unreliable document; and if the person is not in the correct state to declare his age.
Interviews by experts in the field of child psychology and relevant areas should be undertaken and attempts to gather documentary evidence should be made before resorting to other methods of determination. Informed consent for the process of assessment shall be taken keeping the child fully aware of each step its consequences and outcome as a part of best interest principle. The Good Practice Statement states that “A refusal to agree to the procedure must not prejudice the assessment of age or the outcome of the application for protection.” Excessive reliance on medical methods leads to violations of rights along with inaccurate result which is against the best interest.
The UNHCR in Guidelines on Policies and Procedures and in Refugee Children Guidelines lays down certain precautions with respect to age assessment procedures. It states that the methods are only estimation and not an actual age, so there should be scope for margin of error. The technology being used as iterated above must maintain of the dignity of the individual and the procedure must be intended to help the needs of the individual upholding the benefit of doubt principle. “The guiding principle is whether an individual demonstrates an “immaturity” and vulnerability that may require more sensitive treatment.”
Judicial take on age-assessment process
The Lithuanian Supreme Court dealing with the issue led down certain guidelines placing reliance on the Recast, CRCand UNHCR for age assessments. It acknowledged the fundamental rights of survival, expression, and non-discrimination. It stated the principles of transparency and clarity, need for gender-specific and cultural ethnic respect during the procedure.
An important case is that of NBF v Spain which dealt with the complaint of best interest being neglected during the age-determination process where radiological tests and physical appearance was considered over documented age proofs. The Committee gave the benefit of doubt and obligated States to provide free legal assistance in the best interest of the child.
Another important case is MAB v Spain, which also dealt with the aforesaid issue. The Committee reiterated that official documents are to be considered genuine unless proven otherwise. It was wrong for the state to outright reject the documentary proof without assessing the information or seeking clarification from the country of the child. The Committee recommended the State to:
● Ensure the procedures should be in consonance with the convention,
● Legal assistance to be appointed for the young,
● Provision for review of mechanisms relating to the young, and
● Train the officials who deal with migrant children.
A reliable, effective and consistent instrument for assessment is a condition precedent for the specific rights to be enjoyed by the intended beneficiary of the same. A wrong or inaccurate result can lead to drastically affecting the rights of the individuals who were being treated as minors before the assessments. If there is no acknowledgment of the margin of errors in such assessments, the individual might be left to the mercy of the states with no assistance. Where there have been years of advocacy for developing a uniform and holistic approach, there hasn’t been an emergence of the same.
“A holistic policy obligates the state official undertaking the age assessment to not rely solely on the child's physical appearance, but instead to consider his or her demeanour, ability to interact with adults, cultural background, social history, life experiences, educational history, as well as the views of foster caregivers, residential workers, teachers, and interpreters.”
The need that an assessment is required itself shows that there is doubt as to the age of the individual and a possibility of him being a minor. Relating best interest with age determination, it should be guaranteed that there is no assumption of majority on refusal to undergo any of the examinations. There should be no scope of bias or adverse presumptions on the basis of physical appearances and the benefit of doubt principle should be given precedence. Forced consent or consent without knowledge of the consequences and the procedure should not be obtained and the child must be given an opportunity for remedies and legal protection in such cases to form an informed opinion.
The author personally feels that instead of varying procedures being followed by the host states, the authorities dealing with such issues should arrive at an understanding in concurrence with child psychology experts. Acknowledging the child as a right holder is important instead of looking at them as a burden on state responsibilities.
 Jacqueline Bhabha, Arendt's Children: Do Today's Migrant Children Have a Right to Have Rights?, 31 Hum Rts Q, 410 (2009)