02 January 2011

Age Determination

Disputes about the process of “Age Determination” have a history in Hamburg. The process has been used for decades to ascertain if refugees arriving in Germany are minors (people under the age of 18) or adults. This distinction is important from a legal perspective: minors are granted a number of protections that adults aren't. Minors have a right to attend school and cannot be deported as easily as adults (according to the Dublin II agreement, adult refugees can immediately be deported back to the country of their first entry into the EU). The state has an obligation to care for children, which it doesn't have for adults.

The process of 'age determination' is therefore, in reality, one of 'making people older'. 

This is why the Hamburg 'Ausländerbehörde' (Foreigners Authority) has put a lot of effort into establishing methods to determine a person's age. For many years they have been working closely with the Forensic Institute at the University Hospital Eppendorf in Hamburg (UKE), especially with its head, Prof. Püschel.

In the past, the 'age determination' was usually done by an employee of the Foreigners Authority, simply by looking at the person and giving an estimate. In some cases, medical examinations were also done, mostly at the request of the person involved. The resulting birthday is either the 1st of January or the day they entered the country. This way, whole families have their official birthday on the same day. In 2009, the procedure was changed. Since then the young person is automatically sent (or accompanied) to a medical examination at the University Hospital. The examination includes x-rays of of the carpal bones.

This is not without problems itself. According to German law, no-one can be forced to undergo a medical examination, especially not one that is potentially harmful, such as an x-ray. Performing an x-ray examination on a person without medical indication or a relevant court order is strictly speaking a case of assault. However, hardly any of the young persons who are subjected to the procedure know their rights or are even told what is happening to them. And experience shows that those who refuse to have x-rays taken are then immediately classified as adults. There are two court rulings that have criticised the practice of forcefully subjecting refugees to the x-ray procedures.

The methods used are also disputed. First of all, refugee organisations argue that the question of whether someone can be treated as an adult or needs the protection of a child depends on a lot of factors, not just the chronological age. Secondly, in 2007, the German Medical Association decided to reject any participation of its members in the process of 'age determination'. Among the reasons was that the method of taking x-rays of the carpal bones was “scientifically highly disputed” and “potentially dangerous”.

There are also accusations that a particular form of racism is applied: refugees from African countries are found to be adults in 80% of the cases, while the average figure for all refugees is around 50%.

The problem of age determination applies to the youngest of the accused in the trial. His ability to stand trial stands or falls by his age: if the court agrees with his stated age of 13 he cannot be tried at all. If the court decides that he is under 18, the trial has to take place in a youth court. Therefore the prosecution has tried its best to make him older than what he claims to be: they took him to the Forensic Institute without a translator, so he didn't know where he was taken. The so-called 'medical experts' then gestured to him what they wanted him to do – open his mouth, bite on something, lie down or stand up to have his x-rays taken.

This is a young person who is unlikely to have ever encountered the methods or the devices used on that day. He had no idea what an x-ray machine does, there was nobody there who understood his language, so he had no means of objecting to what may well have been an illegal procedure. The same procedure which the Medical Association resolved not to take part in.

And if the statistics are to be believed, being from an African country made his chances even worse. So it is no surprise that the examining doctor found him to be “at least 18”. How convenient for the prosecution.