Age assessment: dental assessments, appearance and the benefit of the doubt

Friday 10 November 2017

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AS was born in Afghanistan. His father, who had worked as a commander in the police, was kidnapped by the Taliban. The family were later informed that he had been killed. The Taliban came looking for AS and it was decided that he should leave the country. He arrived in the UK on 7th September 2015 and claimed asylum. He was taken into the care of Kent County Council. His stated age of 15 was not accepted and an age assessment was undertaken, as a result of which he was found to be 17 with a date of birth of 7th September 1998. Judicial review proceedings were issued challenging this decision. During the course of proceedings, Kent changed its position and argued that he was most likely to be aged 24.

The matter came on for trial before Upper Tribunal Judges Grubb and Rintoul in June 2017 and judgment was handed down in September 2017.

The Tribunal began its judgment by noting that the case raised three “specific issues of wider importance” (§2).

The first of these was the reliability of dental age assessments, namely the determination of chronological age by an examination of the subject’s teeth.  In this case, Kent relied on a report by a Professor Roberts which concluded that AS had a likely approximate age of 23 years.

Dental age assessments had been considered previously by the Upper Tribunal in the case of R (ZM & SK) v London Borough of Croydon [2016] UKUT 559 (IAC).  In that case, UTJ Ockelton had concluded that “the fact that all teeth are mature in the sense that all have reached Demirjian stage H is a sign of chronological maturity but is not a reliable indicator of whether an individual is more or less than 18 years old” (headnote).  He also criticised the expert (in that case and this), Professor Roberts, as having “developed an attitude of omniscience, in which he is prepared to assume that what he says goes” (§73).  UTJ Ockelton found that Professor Roberts “seems to be prepared to base apparently precise assessments on material which simply cannot support those assessments” (§73).

In AS, the Tribunal found that there was “nothing in the materials to show that we should depart from the conclusion reached in ZM and SK that the stage H data is unreliable” (§83).

They went on to consider the reliability of a different method of dental age assessments, namely the presence and appearance of mandibular maturity markers. Kent’s case was that these could be “determinative or at least highly suggestive of a subject being an adult” (§85). The Tribunal disagreed. They noted a number of problems with the evidence, such as the lack of a scientific consensus, the absence of data for Afghan nationals, inexplicable inconsistencies in the data, and serious gaps in the evidence (§§84-109). They concluded that “at best, the issue of MMMs is a developing area and it is work in progress” (§103).

The Tribunal also expressed a number of concerns about the reliability of Professor Roberts as a witness, finding that his conduct showed “a strong tendency to overstate the value of research he has undertaken and his methodology” (§118).  Of even “greater concern” was “the significant evidence of him giving assurances about future conduct when faced with the flaws in his methodology yet failing to put them into practice” (§119).

The Tribunal concluded (§120):

“We regret to say that we did not on this occasion find Professor Roberts to be a reliable witness. Nor do we find that MMMs are of any use in assessing age”.

The second issue of wider importance identified by the Tribunal was the use of photographs in age assessments. Kent sought to rely on a portfolio of photographs of boys and young men aged from 14 to 24 years old which were said to represent “a general cross section typical for people of that age group” (§155). The Tribunal stated unequivocally that these were “of no evidential weight whatsoever” (§211). They noted that “How photographs are lit, the type of the exposure, the quality of the camera and other factors, not least including the clothing a person wears can affect significantly their appearance” to the extent that “we question why it could ever have been thought that the compilation of an album of photographs could have assisted anyone” (§209).

The final issue of importance was the “proper scope of the benefit of the doubt” in age assessments (§2). Previous case-law had confirmed that “Giving the child the benefit of the doubt should always be the standard practice” (R (AS) v Croydon LBC [2011] EWHC 2091 (Admin) at §19). Kent sought to challenge this practice, arguing that, in fact, the benefit of the doubt was irrelevant and should not be applied. The Tribunal decided that “application of the benefit of the doubt is nothing more than an acknowledgement that age assessment cannot be concluded with 100% accuracy, absent definitive documentary evidence” particularly given that, in the case of unaccompanied asylum-seeking young people, age was “unlikely to be supported by other evidence” (§21). Properly applied, where a decision-maker concluded there was doubt as to whether an individual was over 18 or not, then the benefit of the doubt mandated the conclusion that the applicant was under 18. It was not of use where a specific age had to be determined “except insofar as it requires a sympathetic assessment of the evidence” (§21).

In reaching its conclusion on age, the Tribunal placed very little weight on either the evidence of the assessing social workers or of AS, who they found not to be credible. They preferred the evidence of a support worker, who had spent the most time with AS and who they found to be a reliable witness of fact. They concluded that AS was 19 with a date of birth of 7th September 1998.  Importantly for AS, this meant that he had been a child when he first presented in the UK and for a year thereafter.

Comment

This case is likely to have significant implications for age assessments generally.

Firstly, it is now clear that, as matters stand, dental age assessments cannot be relied on.  This method, and its leading proponent Professor Roberts, had already been subjected to criticism by UTJ Ockelton in ZM & SK.  To the extent that it had been left open in that case, it appears that the door has now been firmly closed – absent significant new developments in the research and methodology.

Secondly, the incipient practice of using a booklet of photographs has been nipped in the bud.  The existing guidance which emphasises that little weight can be placed on physical appearance has been reinforced.

Thirdly, the application of the benefit of the doubt has been clarified.

Age assessment is undoubtedly a difficult exercise and no doubt the search for a silver bullet will continue.  However, this case is a reminder that – as the other expert called in the case, Professor Cole, emphasised – assessing age from development markers, which vary widely, is a dangerous exercise.

See related:

The end of dental X-rays in age assessments by Maria Moodie, Barrister, Garden Court Chambers

 

 

 

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