Legal Update: Use of dental X-rays to determine a child's age

The use of dental X-rays to assess the age of unaccompanied asylum-seeking children has been a key issue before the Court of Appeal and Upper Tribunal in recent months. Every year, thousands of young asylum seekers arrive in the UK and many are unable to show how old they are, because, for example, they lack the requisite identification documents. If their age is questioned by Home Office officials and/or social workers, they may undergo detailed assessments in order for their age to be determined. The outcomes of these assessments will not only determine how a child may be housed, supported and educated, but how their asylum claim is assessed and whether or not they are at risk of being placed in immigration detention or adult accommodation.

Age assessments

Age assessments carried out by local authorities usually involve in-depth interviews with the child, combined with observation of their behaviour and information gathered from other professionals and carers. In some instances, medical evidence is also used. Medical and professional bodies have long criticised the use of dental X-rays, arguing that their use is unethical, as well as being an unreliable way to determine age. The Royal College of Paediatric and Child Health and the British Dental Association have advised their members that X-rays should not be used to assess a child's age, unless they have been taken for a therapeutic or medical reason. Last year, the Home Office ruled out the use of dental X-rays to verify the age of Calais refugees, criticising them as "inaccurate, inappropriate and unethical".

While a Council of Europe survey found that 19 countries in Europe currently use dental examinations and X-rays, the council's report cautioned: "There is a broad consensus that physical and medical age assessment methods are not backed up by empirically sound medical science and that they cannot be assumed to result in a reliable determination of chronological age. [They are] at best, an educated guess."

Historically, dental X-rays have been used by local authorities as part of an age assessment and the courts have not completely ruled out their use as evidence. In a number of cases, a Professor Roberts has been instructed by local authorities to carry out dental assessments. However, recent case law has cast major doubt on their continued use. The Upper Tribunal in R(ZM and Sk) v Croydon [2016] UKUT 559 (IAC) found that an assessment of this sort by Professor Roberts "should be read with the greatest of caution" and judges needed to beware of being misled into over-valuing statistics.

Most recently, in AS, R v Kent CC [2017] UKUT 446, the Upper Tribunal found that Professor Roberts was not a reliable witness on this occasion - that he had a strong tendency to overstate the value of his research and methodology. There was also criticism of the social work practice in this case - including not relying on the first assessment, carried out by a social worker with greater experience and that found the individual to be 17, and the use of a booklet of photographs said to be of males typical of their ages.

Adversarial and costly

These recent judgments make clear that the use of dental X-rays is unreliable and of limited, or no, assistance to judges or social workers in determining age. Age disputes can be adversarial, costly and ultimately inaccurate processes, and can adversely affect a child's life, asylum claim and relationship with their social worker and other professionals. It is hoped that recent judgments will see an end to reliance on dental assessments. However, local authorities may continue to use them and in these situations it is important that children obtain legal representation from a community care solicitor who can challenge the process and ensure that the requisite standards and safeguards are upheld.

For more information on age assessments, visit www.childrenslegalcentre.com/resources/

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