The increasing number of children on the move within complex mixed migration flows has placed age determination procedures at the core of migration management.
These children are often unaccompanied or separated from their primary caregivers. With limited access to birth registration in their countries of origin, they are rarely able to produce evidence of their age. In fact, UNICEF highlights that, in many countries of sub-Saharan Africa, over 64% of births continue to go unregistered.
Efforts to effectively manage migration should not overlook the limited availability of birth registration in countries of origin, nor should individuals’ lack of documentation be perceived as a deliberate attempt to contravene migration laws.
As highlighted by the Committee on the rights of the Child, establishing the age of an individual who says that they are under 18 is of fundamental importance, as the outcome will determine whether they will be entitled to protection as a child.
In this regard, the Committee noted that radiological tests, on which the margin of error remains wide, cannot be the sole basis for age assessment procedures. In addition to physical appearance, the individual’s psychological and emotional maturity should also be taken into account. Moreover, age determination procedures should be conducted in a safe and impartial way, based on scientific criteria and appropriate child and gender considerations.
While an age determination process is under way, the person must be presumed and treated as a child.
Furthermore, the Committee stresses the need to ensure that the best interests of the child remain a primary consideration. And that, pursuant to article 12 of the Convention on the Rights of the Child, the child’s views and wishes are elicited and taken into account in determining the measures to be adopted with regard to unaccompanied or separated children.
The Committee specifically refers to the obligation of States to guarantee the observance of the right to be heard for children for whom expressing their views may be particularly difficult such as those physically or mentally impaired, migrants or children belonging to national or ethnic minorities.
Regarding the opportunity for representation, provisions of the Convention on the Rights of the Child regarding the need for consistency with procedural rules of national law should never be interpreted as permitting the use of procedural legislation which restricts or prevents the enjoyment of this fundamental right. On the contrary, States parties are encouraged to comply with the basic rules of fair proceedings, such as the right to a defence and the right to access one’s own files.
The Spanish Ombudsman’s Office continues to receive complaints in relation to the undertaking of medical tests and the absence of forensic interventions. The complaints further alert on the limited involvement of children to express their views in the procedure, and highlight the challenges that children face to appeal decisions based on age determination procedures on the outcome of which they were not duly informed.
The Spanish Ombudsman has shared these concerns with the Spanish Prosecutor’s Office reiterating that the age determination methods currently in use are not in line with recommendations of the Spanish Forensic Institute. As per the information available through the numerous complaints received, the current age determination practice contravenes the internal guidance Note 2/2018 adopted by the Prosecutor’s office to address the limited reliability of radiological tests, the gaps identified in medical reports, and the need to resort to additional medical tests.
The Ombudsman has also welcomed the joint development by the European Asylum Support Office (EASO) and the Council of Europe (CoE) of an Animation on Age Assessment for Children. The animation aims to inform children about the age assessment process, as well as their rights and obligations, in a child-friendly manner.
In support to the initiative, and in the hope that it will contribute to addressing the challenges related to the protection of migrant children in the Canary Islands, the Spanish Ombudsman has translated the animation in Wolof, Bambara and Moroccan dialect.
These translations will be shared with national authorities responsible for the identification and protection of children.
Bambara
Wolof
Moroccan dialect
English
Spanish
Frenchs
Portuguese
