N.B.F. v. Spain

• CRC

Convention on the Rights of the Child: Articles 3, 8, 12, 18 paragraph, 20, 27 and 29

Optional Protocol to the Convention on the Rights of the Child on a communications procedure: Article 7 paragraphs c, e and f

General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin; and Joint General Comment No. 4 of the CMW and No. 23 of the CRC in the context of International Migration: States parties' obligations in particular with respect to countries of transit and destination

The author of the communication is N.B.F., a citizen of Côte d’Ivoire.

On 26 January 2017, the Spanish National Police intercepted the small boat in which the author was travelling in his attempt to enter Spain illegally. At the time of his arrest, the author, who was undocumented, claimed to have been born on 26 March 2000. On 27 January 2017, the juvenile prosecution service of the Provincial High Court of Granada ordered that osteometric tests be carried out to determine the author’s age. The tests were carried out on that same day at the Virgen de las Nieves hospital in Granada and consisted of an X-ray of his left hand, using the Greulich and Pyle atlas method. The results of the X-ray showed that the author’s bone age was “over 19 years”. On the same day, and on the basis of the results of the tests, the juvenile prosecution service of the Provincial High Court of Granada decreed that the author was of legal age.

On 28 January 2017, Motril Court of Investigation No. 3 ordered that the author be placed in a holding centre for foreign nationals for a period of not more than 60 days pending the execution of a deportation order. The author was taken to the holding centre in Barcelona. On admission, he again stated that he was a child; as a result, on 15 February 2017, the police officers at the centre sent a fax informing the juvenile section of the Public Prosecution Service of Barcelona Province, as well as the child protection authority of the autonomous regional government of Catalonia, of the situation. The author maintained that so far he had not received any response.

The author noted that the rulings on the determination of his age issued by the prosecution service could not be appealed in court, as confirmed by the Spanish Constitutional Court in its decision 172/2013, and that he had therefore exhausted all available domestic remedies.

The author claimed to be the victim of violations of Articles 3 (best interests of the child), 8 (right to identity), 12 (right to be heard), 18 paragraph 2 (assistance to parents and legal guardians in the performance of their child-rearing responsibilities; development of institutions, facilities and services for the care of children), 20 (special protection and assistance of children deprived of family environment), 27 (right to adequate standard of living) and 29 (requirements for the right to education).

The author maintained that during the age assessment he underwent, no account was taken of the best interests of the child, in violation of Article 3 of the Convention. The author noted that the only methods of age determination used in Spain were medical estimates and estimates based on a person’s physical characteristics. The author noted the need to differentiate between chronological age and bone age which was a statistical concept that, developed through clinical experience, useful for strictly medical purposes, such as the estimation of the pace of a person’s bone maturation or predictions about how tall a person will be. Chronological age, however, was the length of time a person had lived. The author added that bone age and chronological age were not necessarily the same, as a child’s growth and development could be affected not only by genetic, pathological, nutritional, hygienic and health factors reflecting his or her social status but also by racial factors. The author submitted that the best interests of the child should be the prime consideration throughout an age assessment process and that only necessary medical tests, compatible with medical ethics, should be carried out.

The author also claimed to be a victim of a violation of Article 3, read in conjunction with Articles 18 paragraph 2 and 20 paragraph 1 (special protection for children deprived of their family environment by State), because he was not assigned a guardian or representative, a practice which was a key procedural guarantee of respect for the best interests of the unaccompanied child.

The author maintained that the State party had violated his right to preserve his identity, enshrined in Article 8. He noted that age was a fundamental aspect of identity and that the State party had an obligation not to undermine his identity, as well as to preserve and recover the related data. The author also alleged a violation of Article 20, on the grounds that he was not afforded the protection he was owed by the State party as a child deprived of his family environment. Lastly, he alleged he was a victim of a violation of his rights under Articles 27 and 29, on the grounds that he was not allowed to develop properly, because he was not assigned a guardian to look out for his best interests.

Admissibility

In its observations of 31 March and 11 April 2017, the State party argued that the communication was inadmissible because it constituted an abuse of the right of submission and was manifestly unfounded. The State party also contended that the communication was inadmissible on the grounds that the author had failed to exhaust domestic remedies. It noted also that the author had not provided any evidence proving that he was a child. The State party cited the case of M.E.B. v. Spain, in which the author claimed to be a child despite the existence of X-ray evidence concluding that he was 18 years old. Following investigations by the Spanish police in the author’s country of origin, it was found that he had tried to use a false identity and that he was actually 20 years old. The State party maintained that the author’s situation had been re-examined by specialized doctors under the supervision of the prosecution service and the courts, which confirmed that the author had reached the age of majority.

Merits

On the merits, the State party provided in a submission dated 10 November 2017, that the complaint was generic and rooted in the argument that any finding based on medical age-determination tests that showed that the age of majority had been attained constituted a violation of the Convention. It added that in the absence of reliable evidence of his status as a minor, it was not appropriate for the author to be placed in a centre with other children on the sole basis of his claim to be a child, since doing so might place those children at serious risk of abuse and ill-treatment. In relation to the author’s complaint of an alleged violation of his best interests, the State party noted that the author had omitted to report that he was rescued by Spanish authorities while aboard a flimsy boat; that he was looked after by health services on arrival on Spanish soil and provided with a lawyer and interpreter free of charge; that as soon as he claimed to be a child, this was reported to the Public Prosecution Service, the institution responsible for ensuring the best interests of the child; and that he was currently at liberty and was receiving social assistance.

As for the allegations concerning his right to an identity, the State party stressed that the author had not provided any official identity document, let alone one with verifiable biometric data. Nonetheless, the Spanish authorities registered the author with the name he gave when he illegally entered Spanish territory. The author was cared for by the State until the maximum internment period in the holding centre elapsed, at which point he was released and proceeded to receive “coordinated assistance” and health coverage. His right to development had therefore not been violated.

In his comments of 26 May 2017, the author stated that, although a lawyer was appointed to provide him with assistance, he was at no time appointed a representative of his own choosing to defend his interests as a child, in violation of Article 12 . The author noted that, due to his migration experience, his appearance was very different from that of a person living a normal life and should not be a relevant factor in determining his age. He disputed the argument that the medical tests conducted to determine his age were accepted by the medical forensics’ community. The author noted that there was no record of his signed consent, of the translation of a consent document into his language or of the manner in which he was informed of the consequences of giving his consent. The author noted that the State party neglected to mention another case before the Committee, R.L. v. Spain, in which the author was found to be a child following checks carried out with the Algerian consulate in Barcelona, despite having previously been declared to be an adult on the basis of X-ray tests, which showed how unreliable such tests were. Regarding appeals against the deportation order, the author noted that the lawyer appointed for him did not appear in person, nor was any interview carried out. He added that the only possible appeal against a deportation order was administrative, not judicial. As for challenging the detention order, the author said that the order made no mention whatsoever of the assessment of the author’s age.

None

None

On 3 May 2018, the Defender of Rights of France made a third-party submission on the issue of age assessment. The Defender of Rights argued that age-assessment processes had to be accompanied by the necessary safeguards to ensure respect for the best interests of the child. That States needed to adopt a multidisciplinary approach in age assessment tests. That if doubt persisted after the completion of the procedure, the individual concerned should be given the benefit of the doubt. That while bone age assessment was common, it was not reliable and it undermined children’s dignity and physical integrity. That the European Parliament had deplored the unsuitable and intrusive nature of the medical techniques used for age assessment based on bone maturity, which could cause trauma, show wide margins of error and were sometimes performed without the child’s consent. That the Greulich and Pyle method was unsuitable and was not applicable to the migrant population, it showed significant margins of error, particularly in the 15 to 18 age group. And finally, that the Committee on the Rights of the Child had also called on States not to use bone age assessment methods.

The Defender of Rights recommended that (a) a multidisciplinary approach be taken to age assessment and medical testing be used as a last resort when there were serious doubts about the person’s age; (b) the child be informed and given the opportunity to give prior consent; (c) the person be presumed to be a child during the age-assessment process and protective measures be taken, such as the appointment of a legal representative to assist throughout the proceedings; (d) the testing be carried out with strict respect for the rights of the child, including the right to dignity and physical integrity; (e) the child’s right to be heard be respected; (f) the person be given the benefit of the doubt if the findings of the procedure were inconclusive; (g) an application for protection not be denied solely on the basis of a refusal to undergo medical tests; and (h) an effective remedy be provided through which decisions based on an age-assessment procedure could be challenged.

On 21 February 2017, the Committee requested that the State party refrained from returning the author to his country of origin and that it transfer him to a child protection centre while his case was pending consideration by the Committee. The author alleged that the State party failed to implement the interim measure since he was entrusted to a private social entity as an adult.

Consideration of admissibility

The Committee found the communication was admissible in part. The Committee considered that the author’s claims under Articles 18 paragraph 2, 20 paragraph 1, 27 and 29 of the Convention had not been sufficiently substantiated for purposes of admissibility and declared them inadmissible. The Committee was nonetheless of the view that the author had sufficiently substantiated his claims under Article 3 of the Convention, in connection with the failure to give consideration to the best interests of the child, and Article 12 of the Convention, in connection with the failure to appoint a guardian or representative during the age-determination process. The Committee therefore considered that this part of the complaint was admissible and proceeded to consider it on the merits.

Consideration of the merits

The Committee found that the facts revealed a violation of Articles 3 (best interests of the child) and 12 (right to be heard) of the Convention, and Article 6 (interim measures) of the Optional Protocol.

The Committee considered that the determination of the age of a young person who claimed to be a child was of fundamental importance, as the outcome determined whether that person would be entitled to or excluded from national protection as a child. The Committee added that the enjoyment of the rights contained in the Convention flowed from that determination. It was therefore imperative that there be due process to determine a person’s age, as well as the opportunity to challenge the outcome through an appeals process. While that process was under way, the person should be given the benefit of the doubt and treated as a child. Accordingly, the Committee considered that the best interests of the child should be a primary consideration throughout the age determination process.

The Committee recalled that, in the absence of identity documents or other appropriate evidence, “to make an informed estimate of age, States should undertake a comprehensive assessment of the child’s physical and psychological development, conducted by specialist paediatricians or other professionals who were skilled in combining different aspects of development. Such assessments should be carried out in a prompt, child-friendly, gender-sensitive and culturally appropriate manner, including interviews of children and, as appropriate, accompanying adults, in a language the child understands. Documents that were available should be considered genuine unless there was proof to the contrary, and statements by children had to be taken into account. The benefit of the doubt should be given to the individual being assessed. States should refrain from using medical methods based on, inter alia, bone and dental exam analysis, which could be inaccurate, with wide margins of error, and can also be traumatic and lead to unnecessary legal processes”.

The Committee held that the State party’s reliance on X-ray evidence based on the Greulich and Pyle atlas lacked precision and had a wide margin of error and was therefore not suitable for use as the sole method for determining the chronological age of a young person who claimed to be a child. The Committee recalled its General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, which stated that in age assessments, an individual’s psychological maturity should be taken into account in addition to his or her physical appearance, that age determination should be conducted in a scientific, safe and impartial manner that incorporated a child- and gender-sensitive approach, and that in the event of remaining uncertainty, the individual should be accorded the benefit of the doubt such that if there was a possibility that the individual was a child, she or he should be treated as such.

The Committee considered that States parties should appoint a qualified legal representative, with the necessary linguistic skills, for all young persons claiming to be children, as soon as possible on arrival and free of charge. The Committee was of the view that the provision of a representative for such persons during the age-determination process was equivalent to giving them the benefit of the doubt and was an essential guarantee of respect for their best interests and their right to be heard. Failure to do so implied a violation of Articles 3 and 12 of the Convention, as the age-determination process was the starting point for the application of the Convention. The absence of timely representation could result in a substantial injustice.

In the light of the foregoing, the Committee considered that the age-determination procedure undergone by the author, who claimed to be a child, was not accompanied by the safeguards needed to protect his rights under the Convention. In the circumstances, in particular the examination used to determine the author’s age and the absence of a representative to assist him during this process, the Committee was of the view that the best interests of the child were not a prime consideration in the age-determination procedure to which the author was subjected, in breach of Articles 3 and 12 of the Convention. Having found a violation of Articles 3 and 12 of the Convention, the Committee did not separately consider the author’s claim that the same acts constituted a violation of Article 8.

Lastly, the Committee considered that the failure to implement the requested interim measure in itself constituted a violation of Article 6 of the Optional Protocol.

The State party was obligated to prevent similar violations in the future, in particular by ensuring that all procedures for determining the age of possible unaccompanied children were carried out in a manner consistent with the Convention and that, in the course of such procedures, the persons subjected to them were promptly assigned a qualified legal or other representative free of charge.

In a joint concurring but separate opinion, three Committee members were of the view that the State party’s presentation of the test results as accurate without a margin of error was misguided, and therefore it could not rely on the test result as a ground for inadmissibility. They added that to reach the conclusion that there was a breach of the Convention, the Committee had to conclude that the author was a child or that, in the absence of reliable evidence, the author should be given the benefit of the doubt relating to his age. In other words, his statement regarding his age had to be preferred over the age provided by the flawed test.

In an individual dissenting view, one Committee member opined that the State party did not violate the author’s rights under Articles 3 and 12, given the Committee needed at least additional information indicating that the author was a child to find a violation of his rights as a child.

In another individual but dissenting view, another Committee member found that the committee had exaggerated that the State party had violated the author’s rights under Articles 3 and 12, since those provisions applied solely to children and the author had not provided any evidence to prove that he was a child.