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Unethical and inaccurate: Border Agency to start x-raying children
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The UK Border Agency will start x-raying children again from 29 March 2012 in order to determine their age. This practice is highly controversial. The letter announcing the resumption of this procedure can be found here. This brings to mind another example of the application of false quasi-scientific ‘certainty’ to another unmeasurable: measuring skulls to determine race.
The former Childrens’ Commissioner for England, Sir Al Aynsley-Green, is on the record deprecating x-ray age assessments and since 1999 the Royal College of Radiologists position has been that x-rays are inherently intrusive, carry a degree of risk, raise the question of informed consent and that there is no normative data outside western Europe and North America.
The doctor promoting dental age assessments and engaged by the Border Agency for their pilot project, Professor Graham Roberts, draws a parallel in his own defence with similar procedures in a legal context for decisions about liability and the quantum of damages “where there is no direct clinical benefit to the subject, although there is usually a financial benefit”. The comparison is flawed, as the age assessment procedure proposed by the UK Border Agency is not voluntarily initiated or requested by the child, or even by social services, but by the UK Border Agency. This is not a case where an adult voluntarily approaches the court or legal system for their own restitution or gain and properly and voluntarily consents to examination. It involves a Government agency accusing a child or young person of lying then proposing that he or she is examined by doctors and subjected to a medical procedure.
Not only is exposing a child to ionising radiation for no therapeutic purpose arguably unethical, it is also inherently unreliable. Professor Roberts’ experience of dealing with non Caucasians is unknown but this 2009 Freedom of Information request seems to suggest he has little such experience. As recently as January this year he himself recorded that his dataset consisted of 2,700 cases of UK Caucasians and 850 ‘Afro-Trinidadian subjects’.
Professor Graham himself suggests that his procedure is inaccurate between 32 and 35% of the time. During a hearing by the Australian Human Rights Commission into the usefulness or otherwise of dental age assessments it was suggested that Professor Roberts gets it wrong 39% of the time. A number of detailed criticisms were made of his methods.
Professor Roberts himself defends his accuracy as being ‘well above the 50% threshold’, presumably a reference to the legal standard of proof of the balance of probabilities. This misunderstands the nature of the standard of proof, though. Judges and lawyers would not like to think that the outcome of a court case is always wrong in 49% of all cases, which would be the statistical reality if the balance of probabilities were interpreted in statistical terms. Rather, the threshold in each individual case is the balance of probabilities, but in many or most cases the evidence will point very much more firmly in one direction than another. This is not the case with dental age assessments, where it is absolutely guaranteed that between 32% and 39% of all decisions made on that basis alone will be wrong.
This is no basis for accusing any child of lying, never mind depriving them of the educational, welfare and support arrangements to which they would otherwise be entitled. It is not the first time, though, that the UK Border Agency has dabbled with dubious scientific processes in their Quixotic quest for certainty. The ominous sounding Human Provenance Project, linguistic analysis and, further back, virginity testing spring immediately to mind.
Immigration Law Practitioners Association members may be interested to see their resource page has further information and references.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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23 responses
FM,
A few points to make on this one, first the letter says that the scheme is a pilot project to run for three months to see if it is useful, second the test is not compulsory but optional to those living in Croydon who have been ‘Merton’, assessed as being adult but still maintain that they are children.
Also, I have to say, that I have seen X ray report relied on by immigration lawyers on several occasions (be they dental or wrist).
No piece of evidence should normally be decisive on its own, you would expect an IJ (or primary decision maker) to consider all the evidence in the round, however given that the alternative is the Merton test or the “physical demeanor” test (i.e. what an chief immigration officer standing in a crowded custody suite or a IJ up on their platform in a hearing centre think), it does appear to be a more scientifically grounded method.
The new Director for Asylum says “Many of you will be aware of the difficulties that arise when we are not able to establish, with any certainty, the age of an asylum applicant”, you often criticise POs for (in your view) lacking an “alternate Hypothesis”, so in relation to age assessments, what’s yours ?
PO
The same mentality was behind virginity testing – ‘how else do we know these women are virgins?’ That was no doubt said to be ‘optional’, and medical professionals colluded with that as well despite their being no medical justification for the intervention.
Alternative hypothesis: accept what a person says unless there is good reason not to. Visual assessment or a single interview is not a good reason.
Your readers may be interested to learn that these issues have been discussed for a long time among the agencies in Europe responsible for considering asylum applications from persons who claim to be minors. As this claim is not correct in a significant number of cases all these agencies have to decide how they should deal with claims which are not obviously justified or unjustified. Whether medical examinations then are less or more justifiable than other methods will also depend on an assessment of their precision and effectiveness compared with the alternatives. To improve these methods, for age assement of asylum seekers, for participants in age determined sports events (e.g. soccer)and sports withh minimum age requirements (e.g. gymnastics) and other areas (e.g. forensics) a group of Norwegian scientists (medical, dental, IT and statisticians) are working to develop a research programme to develop better methods for data capture (i.e.alternatives to X-rays), for interpreting the data captured (e.g. by the use of image analysis), for expressing the range of possible age variation for an individual given the naturally occuring variation in a relevant reference population, and how to obtain observations for more relevant reference populations than those available today. Hoefully this initiative will receive support from scientists, sports associations and agencies handling asylum applications in many countries.
Does he do evening classes in phrenology?
I mean if you get the “science” right phrenology could have a major role in protecting the borders of this freedom loving country of ours.
Just think. Through careful observation and even a bit of experimentation on those in detention (with consent-of course)ECOs and caseworkers at UKBA could determine the cases in a fair, just and tolerant way-the holy grail.
Or UKBA could call Tom Cruise and the “precogs”.
So many obvious solutions. Hmmm
“This search for certainty is often at the expense of assessing the child‟s psychological and developmental well-being as well as an indication of their age.”
http://www.unicef.org/protection/Age_Assessment_Practices_2010.pdf
A very good overview by UNICEF from 2010.
We’re still concentrating on ‘snap shots’ here. One off x-rays seem to have more deficiencies than benefits, guesstimates by CIOs and IJs have no validity and Merton assessments are frequently flawed because they rely on a single interview. If this is to provide an opportunity to review a Merton assessment then let’s have a proper multi-disciplined assessment which doesn’t rely on any single ‘test’ and can review developmental age and age appropriate/inappropriate behaviour as well as chronological age. NB age inappropriate behaviour can be an indicator that a person has been trafficked not necessarily that they are over 18; a point that is often lost.
FM, if we accepted what everyone said ‘without good reason’ then we should be selling cigarettes and alcohol to children. Children are asked for ID for a good reason. Equally, the HO need to see some sort of evidence about age for a good reason- there’s a benefit to lying about your age in the same way there’s a tangible benefit to lying about whether you’re genuinely at risk in your home country. Understandable why they do it, but that’s not the point.
There’s a mosque that I have been to on Church Road, Willesden, NW10 9NP (called the Afghan Islamic cultural centre). Many of the ‘children’ there speak openly to me (despite knowing I worked for the HO) about beign deceptive about their age. Indeed they boast about it to anyone who cares to listen. FM, PO and anyone else that would like to talk to them is more than welcome to take a trip down there. They take delight in the fact they have obtained minor status despite being in their 20s (and even two who are in their 30s!)
Performing medical procedures on children is not the answer, especially when the results are guaranteed to be wrong in over one third of cases.
Ok then FM, so (according to you) visual assessment is not adequate, neither are Merton assessments or x rays, assuming that you accept that some asylum claiments lie about their age, what’s your solution?
PO: Overall assessment in the round, without the use of a dodgy medical procedure. Evaluate what they say, assess what evidence there is, conduct proper family tracing as obliged by law.
From London: Children are not normally asked for ID, adults are. The position of age-disputed children is a sick reversal of the normal scheme of things. And why believe these people when they tell you what you want to hear in one context but not when they tell you what you don’t in another? Why assume that this bragging is true?
FM, I assume you’ve never been instructed in a case where solicitors have provided a report by Diana Birch, and you certainly have never asked the IJ to put determinative weight on said report despite the fact her ‘science’ has no support amongst her peers at all?
If an x-ray can give the correct answer 65% of the time, then surey that IS the best tool available, and certainly adequate to meet the relevant standard of proof one way or the other?
And can you answer PO’s question, do you accept that some asylum applicants lie about their age? We are often criticised for being overly cynical, and I’m sure some of us are, but do you not think some reps may be overly trusting?
FM, as much as I hate to be a dog with a bone, I really don’t think that you have actually grappled with this issue on a practical basis.
You have not challenged (thus I take it that you accept) that some asylum claimants lie about their age for material advantage.
You rejected visual assessments made either by my warranted colleagues or independent members of the Judiciary (I would invite you to tell us all if you have ever invited an IJ to find that your client was not a minor by way of visual assessment), you reject “single interviews” (by which I assume you are referring to Merton Assessments) also.
I’m no fan or Merton Assessments myself, although it relevant to note that Mr. Justice Collins (who is not exactly pro Home Office, to put it mildly) said in A v London Borough of Croydon [2009] EWHC 939
“…only in a very few instances will it be possible to review successfully a refusal to change a conclusion reached through a Merton compliant assessment..” (Para 81).
And thus we come full circle, so can I be a little more specific, can you give an alternative hypothesis that is in fact realistic, one that can actually be employed by those who are tasked with making these assessments ?
PO
Minor correction, meant to ask FM if he had ever invited an IJ to find that a client WAS a minor during a hearing.
FM, you’re in danger of contradicting yourself: on the one hand you say there should be overall assessment in the round, though in the same sentence say without taking medical procedures into account- that’s not really looking at evidence in the round, is it?
Furthermore, I assume you would have no qualms about relying on ‘expert’ medical evidence. In reality ‘expert’ medical evidence is no different to the age assessments you so strongly oppose. Arguably the ‘expert’ evidence is often weaker- you’re no doubt aware of several cases which criticise the so called ‘expert’ reports.
To directly respond to your point about accepting what these men at the mosque say: when they’re before a HO official or an IJ there is a SIGNNIFICANT benefit to lying. When in a mosque, after Friday prayers for instance, there’s no benefit to lying. Moreover, lying in a mosque is one of the worst possible things you could do as a muslim and the fact they’re there at prayers tells me they do have some integrity, even if that disappears before the HO/ tribunal and only reappears for prayers.
Anyway, you’re welcome to attend the mosque for yourself to hear it first hand. There’s large unmbers of them there on a Friday at 2pm though I suspect you’re too busy!
I’d also be interested to hear your response to PO who challenges you far more eloquently than I ever could.
On the point of children not being asked for ID: FM, I suspect you were far too sensible to be attempting to buy alcohol when you were under 16.
If you speak to any young teenager today they’ll tell you they’re constantly asked for ID when they cheekily try and buy some alcopops. Over 50% of under 16s regularly try and buy alcohol and are therefore regularly IDed.
I think FM meant that for the purpose of buying alcohol, you are assumed to be a child unless you can prove otherwise while asylum seeking children are assumed to be adults and have to prove that they are not.
In any case, the risks of treating a child as an adult outweigh those of treating
an adult as a child (though the latter is obviously undesirable and also potentially dangerous for other children)
I didn’t know that attending prayers was a sign of integrity…
http://www.guardian.co.uk/uk/2012/apr/05/x-ray-trial-asylum-seekers-age
Interesting view point from all. Genuine children are most affected when adults lie about their age. Genuine children are also the most affected when they are accused of being adults. We just need to strike a balance!
Back from my hols to find quite a few comments. I have moderated one of these as it is by someone claiming to be a very serious criminal. It very much looks like a sick joke and is suspiciously well written and well informed but by the comment’s nature I’ll need to make a referral to the police and others (with the relevant IP address) unless someone contacts me and can convince me that it was indeed a sick joke.
Sorry to end this on a sour note.