GENEVA (13 October 2020) – Spain's procedures to determine the age of unaccompanied migrant children violated their fundamental human rights, the Committee on the Rights of the Child (CRC) has found.
The Committee, composed of 18 independent experts, has adopted 14 decisions against Spain on the issue of age determination of unaccompanied migrant children since 2019. The experts found various violations of the Convention on the Rights of the Child, in particular, the right to identity, the right to be heard, and the right to special protection of children deprived of their family environment.
In one of the latest cases reviewed in September this year, 17-year old Guinean teenager M.B. arrived in Almería, a city in southeast Spain, in June 2017 after the small boat in which he was travelling was intercepted by the Red Cross. M.B. told Red Cross staff and the Spanish police that he was under 18. However, police officers registered him as an adult aged 21 without doing any age assessment.
The Spanish authorities rejected M.B's application for asylum and he was detained in a holding centre for foreign adult nationals in Madrid. NGO Fundación Raíces managed to obtain his birth certificate from Guinea, proving that he was under 18, and sent the document to various Spanish authorities. He was eventually released after 52 days at the centre, but he was not recognized as a minor, he was not assigned a guardian to look after his legal interest and he was not offered the protection to which children are entitled under both national and international law.
In another case, Algerian teenage A.L. was arrested by Spanish police when he was attempting to reach the coast of Almeria illegally in a small boat in April 2017. Although he was unaccompanied and had no documents on him, A.L informed the police that he was 17.
He was taken to a hospital where an X-ray test was performed on his left hand to determine his age. The results of the test showed that A.L.'s bone age was over 19 years, two years older than his real age. Based on the X-ray result, the Public Prosecution Service issued a decree stating that A.L was an adult. He was then sent to a holding centre reserved for foreign adults and was beaten with a stick by one of the centre guards. With the help from Fundación Raíces, A.L. submitted his birth certificate to Almería Court of Investigation to prove that he was under 18. However, he never received a reply from the court and thus he brought his case to the Committee.
In all of the 14 cases received by the Committee, Spain failed to conduct a proper age assessment. For example, the commonly performed wrist X-ray has a margin of error of four years, according to a journal published by the United Nations High Commissioner for Refugees in 2019. According to UNHCR, some 2,500 children arrived in Spain in the first nine months of 2019, many of them unaccompanied.
The CRC highlights that establishing the age of an individual who says that they are under 18 is of fundamental importance, as the outcome will determine whether they will be entitled to protection as a child.
"Due process of the procedure to determine a person's age, including representation as well as the possibility to appeal the outcome are extremely important," said Luis Pedernera, Chairperson of the Committee. "While that process is under way, the person must be presumed and treated as a child," he added.
The Committee stressed that identity documents, once available, should be considered as valid unless there is proof to the contrary, as recognised by Spain's own Supreme Court. It also called on Spain to take the best interests of the child as a primary consideration throughout the age determination process.
Decisions by the Committee are now available online.
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The Committee on the Rights of the Child monitors States parties' adherence to the Convention on the Rights of the Child and its Optional Protocols on involvement of children in armed conflict, and on sale of children, child prostitution and child pornography. The Convention to date has 196 States parties. The Committee is made up of 18 members who are independent human rights experts drawn from around the world, who serve in their personal capacity and not as representatives of States parties. The Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OPIC-CRC) allows the Committee to receive and examine complaints by individuals or groups of individuals claiming to be victims of a violation of the rights of the child by States that have ratified the Optional Protocol. To date, 46 States have ratified or acceded to the OPIC-CRC. The Committee's views and decisions on individual communications are an independent assessment of States' compliance with their human rights obligations under the Convention and its two substantive optional protocols.