Council of Europe report examines age assessment procedures in the context of migration

The Council of Europe released a report in September on age assessment procedures in the context of migration and asylum.

The report looks at how age assessments are carried out across 37 of the 47 member states of the Council of Europe and provides an overview of human rights principles, standards and safeguards.

You can read the 47-page report here.

Daja Wenke, the independent expert who authored the report, finds that age assessment policies, procedures and practice across Council of Europe states is highly fragmented and procedural safeguards afforded under international and European standards are not upheld consistently.

Wenke is concerned that some Council of Europe member states are using invasive age assessment methods that may cause physical or mental harm.

Seven of the 37 countries surveyed for the report use sexual maturity assessments and 9 countries use physical development examinations. X-rays are also commonly used, with 24 countries using wrist X-rays, 19 countries using dental X-rays, and 9 using x-rays of the collar bone.

Daja Wenke says an age assessment should only be carried out after the child and his or her guardian or legal representative has given informed consent, but 11 Council of Europe member states do not require informed consent. Eleven of the 37 countries surveyed also do not have a right to refuse participation in an age assessment procedure.

The report's executive summary sets out the following key principles:

• An age assessment should only be conducted if it is in the best interests of the child.
• The age assessment procedure has to safeguard the child’s right to development.
• States should uphold the principle of non-discrimination in referral to age assessment and during procedures. They have also an obligation to ensure that effective monitoring and complaints mechanisms are in place.
• The child has the right to be heard, to express their views and to have their views taken into account at all stages of the procedure. Age assessment should not take place without the child’s and their guardian’s informed consent. States should inform the child of the reasons for the age assessment and avoid repetitive or multiple assessments.
• If a child refuses to participate in an age assessment, the competent authority for age assessment should seek to understand the reasons for their refusal. The refusal must not entail an automatic adverse decision concerning the child’s age or immigration status.
• Children undergoing age assessment have a right to be informed of their rights during the procedure, the purpose, steps and duration of the procedure, and to be assisted by a legal representative and/or guardian. Age assessment procedures need to respect the right to privacy and data protection.
• Age assessment methods should be child-sensitive and adapted to gender and cultural sensitivities. Age assessment interviews should uphold the dignity of the child. Physical and medical examinations should be measures of last resort. Other holistic methods should be preferred such as gathering and using documentary evidence and conducting an age assessment interview with the person concerned. Where there is a margin of error of age assessment results, this should be applied in favour of the person whose age is being assessed.
• The professionals conducting the assessment and making age assessment decisions should be independent and impartial. They should receive appropriate training.
• Age assessment procedures should be carried out in a timely manner. If the age assessment concludes that the person is a child, they should benefit from timely follow-up, which may include referral to appropriate accommodation and child protection services.
• Children have the right to an effective remedy. They should be informed in a child-friendly manner of the complaints mechanism and appeals procedure.

Pages 39 to 44 of the report takes a look at age assessment case law from national courts and the European Court of Human Rights.

The report concludes that the ultimate goal of any procedure should be to ensure the protection of the person's rights, and to prepare him or her for the future transition into adulthood and independent life.