Appropriate age determination is crucial to ensuring an unaccompanied migrant child's right to protection and services, including admission to a residential center and protection from arbitrary expulsion.162 Spanish law acknowledges the importance of timely age determinations and requires the Ministerio Fiscal to arrange for health care facilities to conduct age determination tests "as a matter of urgent priority" whenever the minor status of an undocumented foreign national cannot be established with confidence.163 Our investigation found that age determination procedures in Ceuta and Melilla are often carried out by individuals who lack appropriate training and are frequently arbitrary, cursory, and in some instances punitive. Age determination procedures that arbitrarily deny children the rights guaranteed them by their status as minors violate international law.164
Police and residential center staff make the first, and often only, determination of a child's age. The Departments of Social Affairs and Health provide no training to either the police or the residential center staff on how to evaluate a child's age, and sources in the Ministry of Interior were unable to tell us if police received training from any other sources. Police make a visual age assessment when taking children into custody. Those the police deem to be over eighteen are summarily expelled from Spain, and those who appear younger are taken to a residential center. Unaccompanied children as young as thirteen told us police had expelled them based on visual assessments. At times, arguing with the police helps, sixteen-year-old Ra`id I. told us. "Sometimes [the police] want to take me to the border, but I insist that I'm under eighteen and I tell them they have to take me to San Antonio," he said.165
Residential center staff determine whether to admit a child based on their assessment of the child's age.166 Some children reported that staff at residential centers refused them entry to residential centers based on visual assessments that the children were eighteen or older. According to one official in Ceuta, residential center staff sometimes made these assessments at a distance, while children were seated in police cars parked outside.167
Inmaculada Casaña Mari, the director general of Melilla's Department of Social Welfare and Health, told us that children were only referred for medical examinations "if there is doubt" about their age, but this was not often the case because "[n]ormally the people working in the center have the experience to know when a child is a child."168
Samir A., who told us he was fifteen, described one such medical exam. A forensic doctor had examined him approximately eight months before we interviewed him in October 2001. "They put my hands on a machine and told me that I was sixteen years old," he said. When we asked him how long the examination had taken, he replied, "It wasn't longer than a quarter of an hour."169 According to fiscal for minors José María Montero, "now, under the new law, age determination is done with a forensic exam of the wrist, by x-ray. "170
Experts warn that bone x-rays have a very high margin of error and expose children to unnecessary radiation. The Separated Children in Europe Program, a joint initiative of the UN High Commissioner for Refugees (UNHCR) and the International Save the Children Alliance in Europe, notes that "[e]xisting bone directories are out-of-date and are based largely on the physical measurements of white people. As they neglect the impact of ethnic, geographical, social, environmental and nutritional factors, they should not be used for age assessment." As a result, the program recommends that age determination "should stress approaches that are based more on psychological than physical factors." The Program's Statement of Good Practice concludes, "It is important to note that age assessment is not an exact science and a considerable margin of error is called for. In making an age determination separated children must be given the benefit of the doubt."171
UNHCR officials told Human Rights Watch "UNHCR's Branch Office in Spain has expressed on several occasions its concern to the Spanish authorities and to NGOs in relation to the lack of accuracy of the current age determination practices for unaccompanied minors. Against this framework, UNHCR's Office in Spain suggested amendments to the draft regulation implementing the Aliens Law 8/2000, and shared it with the authorities, NGOs and members of Parliament. None of UNHCR's suggestions in this regard were followed in the final text adopted in August 2001."172
Children have little recourse if a forensic doctor's assessment is incorrect. Mamduh H. told us he was seventeen years old and had been in Melilla for two years at the time of our interview, with temporary residency for one and one half years.173 A forensic doctor examined him once and told him he was eighteen, which would have made him ineligible to remain at the residential center. "I argued with them and refused to sign the papers," he said. No action has been taken in his case since then. When asked how a child could appeal the findings of a forensic medical exam, fiscal Montero told us, "The forensic doctor is independent, an officer of the court, so I don't think there is a review process of his decisions."174
Prodein, a Melilla-based nongovernmental organization, wrote to the Melilla Department of Social Welfare and the fiscal for minors in February 2000 to protest the use of unreliable age determination tests such as height tables and dental exams.175 In its submissions, Prodein cited four cases in which the department used these tests as the basis for removing children under the age of eighteen from residential centers:176
· Although Rashid S.'s birth certificate listed his age as seventeen, the department removed him from a residential center after a doctor estimated that he was eighteen years old based on his height and a dental examination.177
· The department also removed Karim F. from a residential center after height and dental examinations found him to be an adult. A wrist bone examination later found him to be sixteen years old. Prodein reports, "Karim F. finally remained in the street and without documents, he was expelled numerous times at the Moroccan border, [and] in September 2000 he died crushed under the axles of a truck when he attempted to board a ship in the Moroccan port of Beni Enzar [Beni Ansar] bound for Málaga."178
· After Ashraf M. was removed from a residential center, an independent doctor found him to be approximately fifteen years and six months old, based on a wrist bone examination.179
· Nabil K. has lived in Melilla since 1991, when he was eight years old. Department of Social Welfare records establish that he stayed in at least two residential centers during the periods February to May 1998, July to September 1999, and November 1999 to February 2000. Although his Moroccan identity documents give his date of birth as June 25, 1983, Melillan authorities required him to undergo an age-determination examination. In February 2000, when he was sixteen years old, the department removed him from his residential center after a doctor estimated his age as eighteen. He applied for a residence card in July 2001; the Delegate has not yet ruled on his application.180
Palazón told us in October 2001 that authorities in Melilla had agreed not to use height and dental age-determination examinations.181
Most children we interviewed had not undergone forensic medical exams. Government officials we interviewed were unable to point to a written policy regulating the use of the exams. The Ceuta official authorized to order expulsion told us that in the absence of information on family members, the results of a forensic medical exam are sufficient to force repatriation.182
The wide variation in results of age assessments based solely on a physical examination, without adequate allowance for a margin of error, highlight the arbitrary nature of these assessments and the determinations based on them.
Following the recommendations of the Separated Children in Europe Program, Human Rights Watch urges Spain to allow children to present other credible evidence of their age, such as an identity document, health care or school record, or testimony from individuals who know the child.183 Estimates of age based on wrist bone examinations should reflect a margin of error of at least twenty months. Finally, authorities should err on the side of extending the protections accorded to minors in cases where an individual cannot be identified as an adult with certainty.
162 Provisions in Spanish law allowing unaccompanied migrant children to receive health and educational benefits, temporary residency in Spain, and eligibility for work permits are all age dependent. See, for example, Organic Law 1/1996, article 10; Organic Law 4/2000, article 35, as amended by Organic Law 8/2000; Royal Decree 864/2001, article 62.
164 Article 2 of the Convention on the Rights of the Child requires states to "respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status." Article 24(1) of the ICCPR states, "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State."
166 In Ceuta, children ten and under are generally placed in the Mediterráneo Center, and older children in the San Antonio Center. Melilla, with its larger number of residential centers, generally separates children older than twelve from those younger, although some nongovernmental organizations running small centers and those only accepting girls are exceptions to this practice.
171 Sandy Ruxton, Separated Children Seeking Asylum in Europe: A Program for Action (Save the Children and the United Nations High Commissioner for Refugees, 2000), pp. 50-54: Save the Children and the United Nations High Commissioner for Refugees, Separated Children in Europe Program Statement of Good Practice, October 2000, Principle 6.
175 Human Rights Watch has criticized the use of such age determination measures in the United States as unreliable. See, for example, Human Rights Watch, Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration and Naturalization Service (New York: Human Rights Watch, 1998), p. 6.
180 Declaration of María del Carmen Barranquero Aguilar, acting technical secretary, Department of Social Welfare and Health, Melilla, Spain, February 13, 2001; declaration of Juan M. Fernández Millán, director, Brother Eladio Alonso Center, Melilla, Spain, March 13, 2001; Morocco Ministry of the Interior, Certificate of Birth Registration of Nabil K., copy issued in Fés, Morocco, 1999 (showing birth date of June 25, 1983); Morocco Ministry of the Interior, Residency Permit of Nabil K., issued in Fés, Morocco, February 28, 2000 (showing year of birth as 1983); Order of José María Pérez Díaz, technical secretary, Child and Family Section, Department of Social Welfare, February 23, 2000.
183 See Sandy Ruxton, Separated Children Seeking Asylum in Europe, Recommendation 6, page 53, and Save the Children and the United Nations High Commissioner for Refugees, Separated Children in Europe Program Statement of Good Practice, Principle 6.