Age determination tests are mechanisms carried out by the State, in this case, by those responsible for migrant children without adult referents in each Autonomous Community, through the area of forensic medicine, in order to determine the biological age of a person who, on arrival in Spain, claims to be a minor.
From a legal point of view, the importance of the answer to this question is crucial, because of the legal consequences of whether a person is over or under 18 years of age:
‘If the evidence determines the age of majority, the person immediately becomes an offender of the regulations on aliens, for being irregularly present in Spanish territory (art. 53 of Organic Law 4/2000), a serious offence that can be sanctioned with expulsion from Spanish territory (art. 57) (Antúnez et.al, 2016, p.15). If the minor is found to be a minor, the declaration of abandonment and the consequent assumption of guardianship of the minor by the Public Administration and the institutions intended for this purpose will be made (Fundación Raíces, 2014, p.16)’ (Fundación Raíces, 2014, p.16)”.
The law seems clear. However, the main problem lies in the impossibility of having a scientific method to determine age accurately. Nowadays, radiological, psychological and dentition techniques are used, which provide an age estimate with a margin of error ranging from 2 to 4 years. Within these age determination tests, ethnic, nutritional, environmental, psychological, cultural, etc. aspects that have an impact on and are directly related to the development of the young people subjected to these tests are omitted (López, 2008). These tests do not take into account that one year too many can leave children in a situation of total lack of protection, just as one year too few can hinder the migratory journey of an adult.
Measurements, as can be seen, based on indices that respond to other times and other populations, subject children and young people to intrusive practices on their bodies. It is worth noting that these practices are not only carried out when children and young people arrive without documentation [1]. There are more than a few cases in which the identity documentation from the country of origin declares the child to be a minor and, even so, the state refuses to accept it, once again using its repressive, selective and profoundly racist arm.
In addition to the specific violations of rights that can be caused by the use of highly intrusive, unnecessary and unreliable age determination techniques, as well as the insufficient consideration of the testimony of the person or the supporting documentation presented by the person, there is a perversion in the use made of most of these techniques, which were originally designed for the clinical diagnosis of pathologies, growth disorders, etc. and which end up being used in forensic age diagnosis.
Once the person arrives in Spanish territory, if the chronological data or date of birth is unknown, age determination is carried out by means of estimates that ‘evaluate’ the degree of psychological maturation and certain anatomical structures: osteometric maturation and examination of the teeth (pantomography). In the case of Spain, it is the Public Prosecutor's Office that orders the determination of the age of young people who do not have supporting documentation, with the corresponding health institutions being responsible for carrying out the relevant tests. As is to be expected, the evolution and development of human beings do not follow a linear pattern, as they are influenced by a variety of genetic and environmental factors, such as the population group of origin, pathological conditions, the socio-economic context, sporting activity, past and present illnesses, nutrition, among others. Furthermore, despite the existence of various tests, greater validity is given to physical tests, which are the most intrusive.
Age estimation results obtained by parameter analysis never give exact results but merely probabilistic estimates. A poor estimate, as already mentioned, entails serious legal consequences for children and youth since it makes a difference in the type of protection to be provided by the authorities, going from administrative guardianship in the case of being under 18 years of age and -therefore- admission to a Juvenile Centre, to possible admission to a Temporary Immigrant Stay Centre (CETI) and even return to the country of origin (Montesinos, 2021, p.244).
Numerous organisations and institutions have long warned that these practices are unreliable, excessively intrusive and respond to mid-20th century European and American body parameters. As Souguir et. al (2002) and the Ombudsman (2015) state with regard to the populations of Muslim countries in the Middle East and North Africa, there is no systematic record or study of bone maturation [2], which makes it impossible to say whether or not the rate follows the evolution marked in other populations. How then can maturation standards be developed in populations for which no information is available?
Despite the unreliability of the medical techniques employed, in Spain, the practice of age determination procedures has become the norm, limiting children and young people's access to their rights. In addition, in many cases the practices are culturally inappropriate for individuals, lack the presence of an interpreter to instruct them about the content, why they are being performed and their future significance, and/or lack informed consent (Fundación Raíces, 2014).
In short, the use of unreliable and excessively intrusive age determination techniques, as well as the generalisation of these procedures, leave aside the ethical implications that the test has among youth and children, such as the estimation of the possible majority or minority age of a migrant person. This practice, which appears to be exceptional in the laws themselves, is currently carried out systematically, in violation of the treaties ratified by the Spanish State and in breach of its international obligations towards children.
Currently, there is no method that offers governments what they are looking for, a safe, reliable and accessible ‘scientific’ method that can accurately define the critical age around 18 (Ombudsman, 2015, p.92). Yet, despite the unreliability of these methods and the reported use of such a method, public administrations continue to ignore those who argue that such a test is not appropriate, and puts children's and young people's rights at stake.
[1] The name and age of the foreigner can be accredited by means of an identifying document, such as a passport, birth certificate, national identity card of the country of origin, family book or other valid document to which the national legislation of the foreigner grants efficacy and which allows the name and age of the young person to be clearly and truthfully known (Fundación Raíces, 2014, p.15).
[2] In Spain, two bone tests are mainly used: the Greulich Pyle Atlas and the Tunner Whintehuse 41 method. Both use radiographs of the left hand of children.
Bibliography
Antúnez, M., Driss, N., García, R., & Olcina, S. (2016). De niños en peligro a niños peligrosos. Una visión sobre la situación actual de los Menores Extranjeros No Acompañados. Harraga.
Defensor del pueblo. (2015). ¿Menores o adultos? Procedimientos para la evalaución de la edad. Defensor del Pueblo.
Fundación Raíces. (2014). Sólo por estar solo. Informe sobre la determinación de la edad en menores migrantes no acompañados. Fundación del Consejo General de la Abogacía Española.
Fundación Raíces. (2020). Violencia institucional en el sistema de protección a la infancia. Fundación Raíces.
López Azcona, A. (2008). Problemática Jurídica de los menores extranjeros no acompañados.
Mata, P. (1856). Tratado de cirugía y medicina legal. Vol. I. Madrid: Imprenta de Don Joaquín Merás y Suarez.
Montesinos, C. (2021). La determinación de la edad. Obligaciones, praxis y estrategias de litigio para la efectiva protección de los derechos convencionales de los Menores Extranjeros No Acompañados. UNED. Revista de Derecho Político(110), 229-258.
Souguir. (2002). La détermination de l’âge chez le jeune tunisien. À propos de 200 cas. Journal de Médicine Légale Droit Médical, 45(2-3).
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