Can X-rays determine age?

Thousands of vulnerable children enter the UK each year, many of whom are unaccompanied, and may have been trafficked, and are reliant on children’s services to assist them. An asylum seeker’s age is of great significance, as children receive higher levels of support and protection in the asylum process than adults. Yet, with one in three births worldwide not registered and many children arriving with false documents or none at all, age is often difficult to prove.

The UK Border Agency (UKBA) makes a decision as to an individual’s age on sight, but a local authority has a duty, under the Children Act 1989, to undergo a detailed assessment and make its own finding as to age. In the absence of statutory guidance and training, these assessments can be complex and are frequently challenged if not carried out properly, resulting in protracted legal battles and children left in “limbo” as they wait for a decision on identity.

Breach of rights
The UKBA’s latest attempt to address this issue is to initiate a pilot project with Croydon Council, announced the day before it was due to start on the 29 March 2012. Over the three-month trial, the UKBA is proposing that dental X-rays be used to establish the ages of asylum seekers claiming to be children, who are assessed by Croydon to be over 18. This move comes three years after the previous Labour government dropped plans to introduce such measures, in the face of fierce opposition from the legal and medical professions. In response to the UKBA’s announcement, the four children’s commissioners issued a joint statement that they are appalled at what they believe is “a clear breach of the rights of vulnerable children and young people” and an initiative which may, in fact, be illegal.

The use of X-rays for making age assessments is very controversial. Not only does it raise legal, ethical and governance concerns, but many argue that X-rays are no more reliable as a means of determining age than social work assessments. In his preface to When is a Child Not a Child? Asylum, Age Disputes and the Process of Age Assessment, the then children’s commissioner for England, Sir Al Aynsley-Green, outlined that “there is substantial variation in the speed with which young people attain sexual and skeletal maturity… and it is naïve to argue that they can determine the child’s chronological ‘age’”.

There are also serious ethical concerns over subjecting children to X-rays that are inherently intrusive and of no therapeutic benefit to them, particularly when there are questions around whether these vulnerable children can give informed consent. In this pilot, rather than the putative children voluntarily consenting to examination, the situation will be a question of, as the Immigration Law Practitioners Association put it, “a government agency accusing a child or young person of lying, then proposing that he or she is examined by doctors and subjected to a medical procedure”.

Legality of X-rays
In 2007, the children’s commissioner obtained a legal opinion from Nicholas Blake QC, which concluded that Home Office plans to use dental X-rays were unlawful. Little has changed in the subsequent five-year period to suggest that X-ray use may now be lawful.

The UN Committee on the Rights of the Child has stated that age assessments “must be conducted in a scientific, safe, child and gender-sensitive and fair manner, avoiding the risk of violation of the physical integrity of the child; giving due respect to human dignity; and, in the event of remaining uncertainty, should accord the individual the benefit of the doubt such that if there is a possibility that the individual is a child, she or he should be treated as such.”

While the system for determining age in the UK is far from perfect, it has long been established that dental X-rays cannot be ethically and lawfully used for such purposes. Also, the focus on pinpointing chronological age continues to distract from what should be an assessment of need for children facing life on their own in an unknown and potentially threatening environment. Machines cannot pick up concerns around vulnerability, trauma, mental health or development, and it is vital that a finding on age be part of a multi-disciplinary assessment conducted by social workers and other key professionals, in accordance with the child’s best interests.