France – Constitutional Council decides on the constitutionality of bone tests to determine age of migrant children

Thursday, March 21, 2019

On 21 March, the French Constitutional Council delivered its decision on the conformity of bone tests in age assessment procedures with the country’s Constitution.

The case was brought before the Council in the form of a preliminary priority question by a Guinean national, whose status as a minor had not been recognised by the French authorities. The applicant claimed, inter alia, that the radiological examination of bones violated the principle of the best interests of the child, as it resulted in unaccompanied minors being excluded from the beneficial provisions designed to protect them.

The Court first reiterated the constitutional character of the principle of the best interests of the child and stated that such a principle requires that the rules relating to age assessment must be accompanied by respective safeguards to ensure that minors are treated as minors. It further noted that, according to scientific information, the results of this type of tests may contain a significant margin of error.

It noted, however, that domestic legislation has provided that only a judicial authority may decide to use such an examination. This authority will also ensure that the subsidiary nature of this examination, namely its use only in cases of lack of identity documents, is always respected. Moreover, the Court added that the consent of the person concerned is of central importance, as the age of a person cannot be inferred solely on the basis of their refusal to be subject to this kind of examination. Lastly, the existence of a margin of error cannot support an argument of unconstitutionality, as the law has provided for a compulsory mention of the exact margin of error on the test results.

Furthermore, these conclusions cannot be the sole basis for determining the person’s age but the judicial authority shall assess their age taking into account other elements, such as assessment reports and interviews with child protection services. In this context, it clarified that, if the test results are contradicting other elements of the aforementioned assessment and there is a persisting doubt, this doubt must be in favour of the person’s status as a minor. The Council concluded that it is the responsibility of the competent administrative and judicial authorities to give full effect to the prescribed guarantees and, in this sense, the legislature has not disregarded the constitutional requirement to protect the best interests of the child.

This item was reproduced with the permission of ECRE from the weekly ELENA 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
Unaccompanied minor