“The only concern held by the assessors was that his shyness and apparent uncomfortable disposition may have been due to his being an adult attempting to hide his physical appearance and project an image of a young person.” (Quote from a local authority age assessment)
Two years ago, Coram Children’s Legal Centre secured a victory in the High Court of Justice of England and Wales for a victim of trafficking, known as ‘Y’. The case centred not on convicting Y’s traffickers of a criminal offence, nor on securing damages for the years of systemic abuse she had experienced having been kept as a domestic slave since the age of five. Instead, the legal battle centred on the decision taken by the local authority, to whom she had turned for support and protection, to dispute her age.
Y knew her date of birth, but like many other asylum seekers and victims of trafficking who come from countries that do not register all births, or who have had to destroy their documentation while fleeing to the UK, she had no passport, birth certificate or other documentation to prove how old she was. Rather than accepting her account, the social workers carrying out an assessment of Y concluded that she was over 18, not 16 as she claimed, and moved her into accommodation with adults. That assessment could only be challenged in court, by initiating a judicial review of the local authority’s decision, and by spending three days in a ‘fact-finding’ hearing so that the judge could come to their own view with regard to Y’s age. In the event the judge believed Y and held that she was the age she claimed to be.
After the case, Y pledged to ‘make the most of my life’ and went on to study child care at college. But the process of being disbelieved and of having to challenge the local authority legally had taken nearly three years: yet more time wasted on top of the ten years of her childhood she had already lost. Crucially, while the dispute was ongoing, she was also denied the protection to which she was entitled as a victim of trafficking, such was the focus on her chronological age rather than her needs and vulnerability.
Each year, at least one quarter of all unaccompanied children claiming asylum in the UK have their ages disputed. These children are alone, without family, trying to rebuild their lives, often while dealing with bereavement, trauma, experiences of exploitation and abuse, and mental health problems. Their age is fundamental both to their access to local authority care and to the proper determination of their asylum, immigration or trafficking case, but these children are regularly disbelieved about how old they are and can end up facing harmful, protracted disputes, during which they frequently do not receive the support and protection to which they are entitled.
A long, costly and damaging system
Assessing age is extremely difficult. Within different ethnic and national groups there are wide variations in young people’s growth and ages of puberty, and children may look and act older as a result of their experiences in their country of origin. Even when using medical evidence, it is impossible to identify a child’s exact chronological age, and a margin of error of up to five years either side applies. While the UK government has focussed on dental x-rays as a means of determination, the simple truth is that there is no magic bullet for establishing precise age. The system that has developed in the UK involves an age assessment conducted by social workers, with the only guidance being the criteria developed through jurisprudence as these assessments have been challenged in the courts. There is no appeal process; as demonstrated in the case of Y, the only way a child can challenge the outcome of the assessment is by judicial review.
As a new report published by Coram Children’s Legal Centre highlights, the age assessment process is long, costly and most importantly damaging to the children involved. In the 35 age dispute cases reviewed for the report, the length of time taken to resolve the issue of the child’s age ranged from ten months to over four years, with many children denied access to support, accommodation and appropriate education during that time. As one judge in a recent age assessment case in the Court of Appeal stated: ‘These appeals show how disputes as to age assessments can generate prolonged and costly litigation. The expense is bad enough. But even worse is the damage that delay and uncertainty may cause to the interests of children’.
The case of ‘H’ highlights the many problems and safeguarding concerns raised by age disputes. Arriving in the UK at aged 16, having suffered years of abuse in Afghanistan, H was assessed to be an adult and dispersed to Home Office accommodation. The social workers had concluded that he looked older than 16 and that he was ‘deliberately trying to make himself appear younger’. Months later, despite concerns raised by a nurse working with H regarding his mental health and her firm belief that he was a child for whom it was dangerous to be housed with adults, H was assessed again to be over 18. Eventually he was detained in an immigration removal centre. Following a court order ordering his release, he was assessed by a third local authority, who found him to be the age he claimed to be. In all it took a year, three assessments, and costly legal action to resolve his case, during which time he was detained for nearly a month.
A principal problem is that, instead of accepting the child’s age where there is no reason to doubt it and applying the benefit of the doubt in line with case law, immigration officials and social care professionals regularly dispute age and put the children through unnecessary age assessments. The culture of disbelief so often criticised in the Home Office has seeped into some local authorities, and this, as well as conscious and unconscious attitudes to asylum, immigration and race, affects how assessments are conducted. Many assessments examined for the report showed unsound conclusions frequently based solely on the child’s appearance and demeanour. If one child is aggressive this is deemed to be ‘adult behaviour’; if another child is passive it is used to draw the same conclusion.
More worryingly, the focus on protecting the child and determining their needs is often lost entirely, and the risks and potential damage of treating a child as an adult overlooked. While it is important to be vigilant so that adults claiming to be children are not placed in foster care or in schools with younger children, it is equally important to ensure that every child is protected and that children do not end up placed in immigration detention, or at risk of abuse in unsupervised accommodation with adults.
A less contentious and distressing process
What is needed is a shift in the default position of the Home Office and local authorities so that the age of a child is disputed only when there is clear reason to doubt their account of how old they are or the evidence they provide. Where an assessment is necessary, it should be conducted in a fair and lawful manner, with the views of independent professionals feeding into a holistic, multi-agency assessment process. While supporting migrant children imposes sometimes unwelcome financial burdens on cash-strapped local authorities, the financial burden of protracted legal challenges is significant too. Rather than litigation, an alternative, less distressing resolution process should be considered to reduce the contentiousness and costs of disputes and enable faster resolution. In addition, the Home Office, as a matter of urgency, must take further action to ensure that no unaccompanied child is placed in immigration detention, an ongoing concern raised by charities such as the Refugee Council.
The vulnerabilities of young refugees and migrants can often be forgotten in the race to prioritise immigration control over individual rights. No organisation working with children in the immigration system would deny that there may be occasional cases of people claiming to be younger than they are. Nor can it be ignored that some children will be briefed by smugglers who facilitate their journeys to this country. But these exceptional cases should not shape the whole system for children who do not have proof of their age, and should not excuse a process that does not adequately consider the needs and rights of children within it.
This article was first published in June 2013