CRC: Violation of Articles 3, 8, 12 and 20(1) CRC for failing to provide necessary safeguards for unaccompanied children in age determination process

Tuesday, November 24, 2020

On 24 November 2020, the Committee on the Rights of the Child adopted its views under article 6 of the Optional Protocol to the Convention on the Rights of the Child (CRC), concerning communications CRC/C/85/D/37/2017 and CRC/C/85/D/38/2017 submitted by authors LD and B.G., respectively. The Committee decided to discontinue the communication by LD due to the loss of contact.

B.G., despite claiming to be a child, was arrested and detained in prison without an age assessment carried out. Consequently, the counsel for BG unsuccessfully lodged a request for interim measures to suspend BG’s expulsion and to transfer him to a centre for minors. It was stated that a handwritten birth certificate and medical card with a photograph were questionable sources of identity, when medical tests, such as X-rays of the left wrist, indicated that B.G. was 19 years old. 
The Committee recalled that identity documentation must be considered authentic unless there is evidence to the contrary. Only when there are no identity documents, States must carry out assessments of the child's physical and psychological development. The Committee noted the wide margin of error associated with the medical tests consisting of a wrist X-ray and found that this method is not appropriate as the only method for the age determination of a person who claims to be a child and presents supporting documentation. It further emphasised that the benefit of the doubt should be afforded to the alleged child in cases, where there is uncertainty. Additionally, the Committee recalled that States must designate a qualified legal representative and an interpreter, if necessary, for all young persons who claim to be minors, as soon as possible upon arrival and free of charge. 

Owing to the lack of adequate consideration of the author's birth certificate, and the failure to assign a guardian to accompany him during the age assessment procedure, the Committee considered that the age determination process did not offer the necessary safeguards to protect the rights of the author under the CRC. As such, the best interests of the child were not a primary consideration in the age determination procedure, thereby violating articles 3 and 12 of the CRC. Furthermore, the Committee observed that the State had not respected B.G.’s identity by denying any type of probative value to the birth certificate that proved his minority without carrying out the necessary authentication checks. Consequently, a violation of article 8 was found. 
Lastly, the Committee considered the allegations of the absence of State protection, despite B.G.’s position of vulnerability. B.G. was treated as an adult, deprived of liberty and placed in detention among other adults for more than a month before being transferred to a centre for minors and in that regard, the Committee found a violation of article 20(1) CRC.  
In light of the violations, the Committee recommended that Spain guarantees that the age determination process is in accordance with the CRC and develops an effective mechanism for appeal so that unaccompanied minors who claim to be under 18 can request a review of the decision, in order to protect the best interests of the child and their right to be heard.
Based on an unofficial translation by the EWLU Team.

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Benefit of doubt
Best interest of the child
Unaccompanied minor