Committee on the Rights of the Child decided on individual communication regarding age assessment in Spain

Thursday, September 27, 2018

On 27 September 2018, the UN Committee on the Rights of the Child (CRC) adopted a decision on an individual communication concerning the age assessment procedure of an unaccompanied minor in Spain.

The CRC first recalled that the existence of a due process to determine the age of a person as well as the opportunity to challenge the outcome through an appeal process is imperative. It established that providing a representation for these persons during the age determination process constitutes an essential guarantee for the respect of the principle of the best interests of the child and ensures their right to be heard. In this context, it noted that lack of timely representation can also result in substantial injustice. Since the child did not have access to a guardian, or any other representative, during the age assessment procedure in Spain, the CRC held that the best interests of the child were not considered of primary consideration and found that Spain violated Articles 3 and 12 of the Convention on the Rights of the Child.

Furthermore, the CRC noted that the radiological evidence based on the Greulich and Pyle atlas cannot be considered to be precise, as the margin of error remains wide. As a result, this method cannot be the sole basis for age assessment procedures. In this respect, the CRC recalled its General Comment No. 6, on unaccompanied minors and separated children, by remarking that, in addition to physical appearance, the individual’s psychological and emotional maturity should also be taken into account. Any such procedure should be conducted in a safe and impartial way, based on scientific criteria and appropriate child and gender considerations. 

The Committee also held that the risk of sending a minor under assessment to an adult-oriented facility is greater than that of transferring them to a minors’ protection centre. In this respect, it found that Spain had violated Article 6 of the Optional Protocol for not complying with the requested interim measure to keep the minor in a child-appropriate facility. Lastly, the Committee stated that Spain is under an obligation to prevent similar violations in the future and, in particular, to ensure that persons will be able to enjoy free and qualified representation during age determination procedures.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Best interest of the child
Unaccompanied minor