What is the issue?
All children are entitled to the same rights, but many countries refuse to protect and realise those rights when children are unable to prove that they are under 18.
This is the case for many of the 12 million refugee and asylum seeking children who often do not have identification documents that can prove their age. For refugees, being recognised as a child can be the difference between being offered somewhere safe to live and given support to reestablish contact with their families, or being neglected, put in detention and deported.
The issue also affects children in countries where there is no universal birth registration. Children who are unable to prove their age can be denied access to education and health care or, in cases when an offence is committed, they can even be sentenced as adults. In the worst situations, the failure to identify children in the criminal justice system can result in them being sentenced to death, as has been demonstrated in Pakistan and Yemen.
What is the problem?
There is no accurate and reliable way of assessing how old a person is if they do not have verifiable birth registration documents.
States commonly resort to unreliable and controversial medical tests to attempt to determine who is a child. In Europe, seven countries use so-called ‘sexual maturity exams’ as part of their age assessment processes, subjecting children who are disproportionately likely to have experienced sexual abuse to an intrusive, degrading and potentially traumatising examination. Not only is this practice abusive; it cannot determine whether someone is under 18.
Other countries use bone x-rays to measure a child’s physical development and estimate their age. These tests have a high margin of error and a number of factors affect the development of bones, including nutrition, stress, socioeconomic status and ethnicity. All of these factors are likely to make any assessment of the age of refugee children particularly unreliable.
In the absence of reliable age assessment tests, States are subjecting children to practices that are not capable of determining age and abusing children’s rights in the process.
What is the solution?
The use of age assessment must fully respect the human rights of children. There are no simple answers, but these rights point the way forward:
Where it is unclear whether a person is a child, they should be presumed to be a child and receive the full protections to which all children are entitled;
States should only use methods of age assessment they can demonstrate to be accurate and reliable;
Age assessment must not be carried out without consent;
The least intrusive means of age assessment should be used;
Age assessment techniques involving sexual maturity exams or nudity must be banned;
A person undergoing any kind of age assessment must be entitled to an independent, impartial process and provided access to free legal advice, assistance and representation; and
Children should never be detained to carry out an age assessment.
Briefing: children’s rights and age assessment (soon to come)
Case law: Examples of using the law in relation to age assessment (soon to come)