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Court of Appeal says children can be required to be x-rayed to challenge age assessment in court


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Interesting and controversial case on X-rays and age assessment from the Court of Appeal: London Borough of Croydon v Y [2016] EWCA Civ 398 (26 April 2016). Essentially, the Court holds that the claimant would have to agree to an age assessment by means of a dental X-ray in order to continue with his claim against the local authority. The claimant was arguing that he had been incorrectly age assessed as an adult when in fact he was a child.

This is not an order that the child must be X-rayed. It does though require him to agree to it as the price of continuing with his attempt to prove he was in truth a child.

X-raying children for the purposes of determining age is highly controversial. Essentially, it amounts to use of an invasive medical procedure for no clinical benefit to the patient. It requires a person who claims to be a child to consent to that procedure even though he or she is unaccompanied and has no parent to consult and often has no person in the UK with parental responsibility for him or her. Whether a child can meaningfully consent in those circumstances is questionable. The issue has been covered previously on Free Movement: Unethical and inaccurate: Border Agency to start x-raying children.

The British Dental Association (BDA) oppose use of dental X-rays for this purpose on the grounds that it is inaccurate and inappropriate:

The BDA is vigorously opposed to the use of dental X-rays to determine whether asylum seekers have reached 18. This is an inaccurate method for assessing age. The BDA also believes that it is inappropriate and unethical to take radiographs of people when there is no health benefit for them. X-rays taken for a clinically-justified reason must not be used for another purpose without the patient’s informed consent, without coercion and in full knowledge of how the radiograph will be used and by whom.

Successive Chief Medical Officers for Government have also expressed strong reservations about requiring children to undergo X-ray dental age assessment. If interested in these issues and a member of ILPA you should have a look at this resource page.

It seems likely there will be further litigation on this issue and the case may well progress to the Supreme Court. Requiring children to give “consent” to a medical procedure as the cost of proving they are children is a major issue.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.