Is This The End Of Dental X-Rays In Age Assessments?
The Law Of… Changing Age Assessments
Controversial and often seen as unethical, the use of dental X-rays to assess the age of unaccompanied asylum-seeking children has been questioned by a lot of recent cases.
Silvia Nicolaou Garcia, Solicitor in Community Care and Public Law, takes a look at why this method doesn't have a role to play in helping social workers or judges identify a person's age.
Dental X-Rays For Age Assessments
Age assessments are used when there is doubt over the age of a child who has arrived in the UK. The purpose of the age assessment is to ensure that any service a child requires is provided and is appropriate to their needs and their ages.
Over the past few months, several cases have passed through the Court of Appeal and Upper Tribunal where the key issue was the use of dental X-rays to determine the ages of unaccompanied asylum-seeking children. This includes the cases of R (ZM and SK) v Croydon LBC  UKUT 559 (IAC) and AS v Kent CC JR/11261/2016 – both of which rejected this method of assessing the age of a child. More information on these two cases can be found in this month’s Legal Action Group opinion piece by Maria Moodie and Silvia Nicolaou Garcia.
How Do Other EU Countries Assess The Age Of Unaccompanied Asylum-Seeking Children?
Cases concerning age assessment procedures have increasingly been challenged in European courts. For example, in Yilmaz v Turkey App No 36369/06, 1 February 2011 the European Court of Human Rights considered the use of informed consent for an invasive medical exam to assess someone's age.
The processes and ways of assessing the age of unaccompanied asylum-seeking children in Europe have been reported on by the Council of Europe's Children's Rights Division. A concern over the inaccuracies of age assessments for migrants was one of the biggest issues raised in the report, as well as the inadequacies of the different procedures and safeguards. The use of medical assessments to identify the ages of different migrants was also called into question.
A survey by the Council of Europe also revealed that medical examinations for age assessments are commonly used in Europe.
Data showed that:
- 24 countries use carpal X-ray
- 19 countries use dental exams and dental X-rays
- 15 countries use physical development examinations
- 9 countries use collar X-rays
- 7 countries use sexual maturity assessments
The UK, however, did not complete the survey.
What Did The Report Say?
Importantly, the report warns that:
"There is a broad consensus that physical and medical age assessment methods are not backed up by empirically sound medical science and that they cannot be assumed to result in a reliable determination of chronological age. Experts agree that physical and medical age assessment methods enable, at best, an educated guess.”
“In addition to the scientific weaknesses and inaccuracy of age assessment methods, several methods have been evidenced to have a harmful impact on the physical and mental health and wellbeing of the person undergoing age assessment…the use of invasive medical exams should be reduced to a minimum and has to remain a measure of last resort."
The report also draws attention to the danger of using ionising radiation for age assessments. This would involve exposing someone "to radiation for non-medical purposes and holds no therapeutic benefit", which is "considered to be in conflict with medical ethics and potentially unlawful." It suggests that if someone refuses to undergo an age assessment that would involve the use of X-ray, their decision should be respected and no penalties should be imposed on them.
Are Dental X-Rays Reliable When Assessing Age?
Following the results of the most recent Upper Tribunal judgement, it's obvious that dental X-rays are unreliable when it comes to assessing the age of someone. It is therefore unlikely that this evidence will be included in any ongoing or future cases.
"Local authorities are most likely going to struggle to pursue or have a successful outcome in strike out applications that are founded on a refusal to submit to dental X-rays", Silvia explains.
"They will also find it hard to get an adverse inference to be drawn from a refusal."
On top of this, it is possible that practitioners could rely on the 'sufficient net benefit' test in the Ionising Radiation (Medical Exposure) Regulations 2000.
Given the current situation, it is crucial that lawyers in the UK and the EU ensure that safeguards and standards for age assessment procedures are maintained. It is also vital for them to make sure that these safeguards are integrated into child protection systems, which have the best interests of the child at their core.
"Age assessments should not be conducted on a routine basis, but only where there is a significant doubt that the individual is the age they claim to be."
"Many unaccompanied and trafficked children arrive in the UK without documentation or with forged or counterfeit documents. They should be given the benefit of the doubt and presumed to be children in order to receive immediate access to assistance, support and protection in accordance with section 51 of the Modern Slavery Act 2015."
"Someone should be able to challenge an age assessment decision, with access to proper and free legal advice and representation. There should be no bright-line cut-off rule and we should ensure that there are heightened protections and continuity of support for adolescents and young people who remain vulnerable, even if they are not children."
"If anyone you are working with who is claiming to be a child but have been age assessed as an adult, it is crucial to obtain legal advice as soon as possible. Call me on 0207 250 4933 to discuss your concerns, or feel free to call our helpline on 0808 129 3320."