CRC: Committee finds violations concerning, inter alia, medical examinations in the course of age determination procedure

Thursday, February 4, 2021

On 4 February 2021, the Committee on the Rights of the Child adopted its views in R.Y.S. v Spain (CRC/C/86/D/76/2019).

When the author, R.Y.S. a Cameroonian national, arrived in Madrid, the Spanish National Police registered her as an asylum seeking minor. She was admitted to a centre for the reception of minors where she remained for two months. R.Y.S. indicated that she was 16 years old and a medical report confirmed this. The medical report also recorded signs of physical abuse and during her interview, she disclosed that she had been abused sexually by her father. At a later date, R.Y.S. underwent further medical tests, including inter alia, a physical examination and a wrist X-ray, for the purposes of an age determination carried out by the Office of the Prosecutor for Minors. The Prosecution Service later issued a decree finding R.Y.S. to be an adult and expelled her from the reception centre. A few days later an administrative decision was issued refusing to grant her protection. She subsequently appealed against these decisions.

It was for the Committee to consider whether the process of determining the age of the author had violated her rights under the CRC

In relation to the medical tests carried out to determine her age, R.Y.S.  underwent, inter alia, a physical examination which required her to undress completely and have her genitalia examined. The Committee noted that R.Y.S. had previously disclosed that she was a victim of sexual abuse and was not provided with information on the purpose of the examination in a language she could understand, nor was a legal representative appointed. The Committee concluded that the examination was carried out without her informed consent, which it considered an unreasonable interference with her right to privacy. Moreover, the Committee took the view that examinations of children involving nudity or examination of genitalia are an infringement upon their right to dignity, privacy and bodily integrity and should be precluded for the purpose of age assessment. As such, the Committee found that R.Y.S.’s rights under article 16 CRC had been violated.

The Committee also considered the failure to assign a guardian or representative to defend her interests as a possible unaccompanied child asylum seeker and throughout the age determination procedure a violation of articles 3 and 12 CRC. Moreover, by that reasoning, the Committee was of the opinion that the age determination procedure did not have the necessary safeguards needed to protect her rights under the CRC and that her best interests were not of primary consideration during the process.

The Committee found that the failure to appoint a guardian for R.Y.S. or to allow her to apply for asylum as a minor had the effect of depriving her of the special protection that should be afforded to unaccompanied minor asylum seekers, in violation of articles 20 (1) and 22 CRC. Lastly, the lack of psychological support provided to R.Y.S., as an asylum-seeking child and victim of abuse violated her rights under article 27, 29 and 30 CRC.

Photo: GPA Photo Archive, September 2010, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child
Child Specific Considerations
Reception conditions
Vulnerable person