Long dismissed by many as unethical, recent cases have sounded the death knell for the use dental X-rays as a means of assessing the age of unaccompanied asylum-seeking children. Silvia Nicolaou and Maria Moodie chart their rise and fall.
The use of dental X-rays to assess the age of unaccompanied asylum-seeking children has been a pivotal issue before the Court of Appeal and the Upper Tribunal (UT) in recent months. Below is an analysis of the key cases and developments that have now culminated in this approach to assessing age being discredited and rejected as unreliable. It is the authors’ view that dental age assessments (DAAs) no longer have a role to play in assisting social workers or judges to determine an individual’s age.
Background to the use of DAAs
In 2007, the Home Office consulted on a proposal for an automatic adverse inference to be drawn from an individual’s refusal to submit to a DAA (Planning better outcomes and support for unaccompanied asylum seeking children
, Home Office, February 2007; the Home Office subsequently proposed, in September of that year, a new rule 352 of the Immigration Rules). In response to the consultation, multiple medical and professional bodies voiced strong opposition to the use of dental X-rays.1See, for example, the British Dental Association’s (BDA’s) response to the consultation (which was reiterated on 23 November 2015: ‘X-rays for young asylum seekers: inaccurate and unethical’, BDA news article, 23 November 2015). See also Nicholas Blake QC and Charlotte Kilroy, In the matter of a proposed amendment to the Immigration Rules (7 November 2007); letter from Sir Liam Donaldson, chief medical officer at the Department of Health to the minister of state for borders and immigration dated 21 October 2008; and Dr Heaven Crawley, When is a child not a child? Asylum, age disputes and the process of age assessment (ILPA, May 2007).
The Home Office later abandoned its proposal.
The Royal College of Paediatrics and Child Health and the British Dental Association have advised their members that X-rays, including dental X-rays, should not be used to assess a migrant child’s age unless the X-ray has been taken for a therapeutic or medical reason (page 64).
Developments in case law
In R (AM) v Solihull MBC
 UKUT 118 (IAC), the assessing social worker expressed caution about accepting dental evidence as providing proof of adulthood. Although the judges felt it was possible to attach some weight to dental findings, the tribunal went no further than that and cautioned against the dangers of this sort of material.
In R (A) v Croydon LBC
 UKUT 168 (IAC), the tribunal considered the claimant’s refusal to consent to a DAA. UTJ Peter Lane refused to make a preliminary ruling that such a refusal was unreasonable on the basis that to do so would be contrary to the tribunal’s overriding objectives (Tribunal Procedure (Upper Tribunal) Rules 2008 SI No 2698 r2). The judge held that the tribunal could not compel an individual to undergo a dental examination involving the taking of X-rays.
In December 2015, in the case of Y v Croydon LBC
JR/8565/2015, UTJ McGeachy refused to grant Croydon’s application to strike out Y’s claim as a result of his refusal, inter alia, to submit to a dental X-ray conducted by Professor Roberts. The Court of Appeal allowed Croydon’s subsequent appeal ( EWCA Civ 398
), holding that Y’s refusal was unreasonable. However, it refused to consider or comment on whether or not this method of assessing age using mean data taken from dental X-rays was reliable.
In R (ZM and SK) v Croydon LBC  UKUT 559 (IAC)
, the reliability of dental X-ray evidence and analysis produced by Professor Roberts and his colleague Dr Victoria Lucas, and relied on by Croydon, was tested. The claimants relied on an expert report produced by Professor Timothy Cole. The key points of that judgment were:
•The risk inherent in the exposure to X-rays is not likely to be a reasonable ground for refusing to allow them to be taken.
•The Court of Appeal’s judgment in Y v Croydon should not be read as an absolute prohibition on a person’s refusal to undergo a dental examination.
•The assertion made by Professor Roberts about ethnic variation ‘bristles with difficulties’ (para 71).
• Professor Roberts was prepared to make ‘what [amounts] to wild guesses’ (para 72) about the differences between Afghan males and the available data.
•An assessment in this form (or anything like it) by Professor Roberts ‘should be read with the greatest of caution and should be acted on only if there has been a proper explanation of the basis for the opinions expressed’ (para 73).
• The exposure to X-rays for the purpose of age assessments is deemed inaccurate and unethical by the British Dental Association, but the tribunal found that information from dental X-rays may provide some assistance in age assessments.
• Judges need to ‘beware of being misled into over-valuing statistical evidence’ (para 79) in these cases and should bear in mind the risk of error. They should also question assumptions behind statistical calculations.
In R (FA) v Ealing LBC JR/12123/2016, Ealing applied to instruct Professor Roberts to carry out a dental X-ray age assessment. FA opposed the application on the basis that it would not assist the tribunal; on his own account he was 17 years and eight months old, and Ealing had assessed him as being over 18 without further specificity. Taking into account the criticisms of the statistical analysis in ZM and SK, UTJ Coker held that the resolution of a four-month age difference could not be achieved by a DAA. She refused Ealing’s application but went on to consider, inter alia, the risk of radiation involved in DAAs. Although not of itself sufficient to prohibit X-rays, it is a factor to be considered. It was noted that the Ionising Radiation (Medical Exposure) Regulations 2000 SI No 1059 were not brought to the attention of the vice-president in ZM and SK. Where the advantages of a dental age examination are minimal, because of the small age gap, the test of ‘sufficient net benefit’ within the regulations is not met.
In AS v Kent CC JR/11261/2016 (promulgated on 11 September 2017) Professor Roberts’ attempt to assess age based on dental X-rays (in particular on mandibular maturity markers (MMMs)) was further criticised. It was held that, on this occasion, Professor Roberts was an unreliable witness and that MMMs were of no use in assessing age (para 120). The following critical observations were made by the UT:
•Professor Roberts relied on a validation study that contained significant errors (para 117).
• He displayed a strong tendency to overstate the value of his research and methodology, which ‘was far from satisfactory’ (para 118).
•Of greater concern was his tendency to give assurances about future conduct when faced with criticism that he failed to put into practice (para 119).
It is understood that Kent CC is not pursuing an appeal against this judgment.
Practice in other EU member states
Cases concerning age assessment procedures have increasingly been challenged in the European courts (see, for example, Yilmaz v Turkey App No 36369/06, 1 February 2011 (French)
, (English summary
), where the European Court of Human Rights (ECtHR) considered the question of informed consent to an invasive medical examination in the context of age assessment).3A case against Italy is also pending before the ECtHR: Darboe and Camara v Italy App No 5797/17.
A Council of Europe survey on which some of the report was based worryingly revealed that medical examinations to assess age are commonly used in Europe, with most respondents combining different types of medical examination: 24 countries use carpal X-ray; 19 countries use dental examinations and dental X-ray; 15 countries use physical development examinations; nine countries use collar X-ray; and seven countries use sexual maturity assessments (page 28, para 132). It seems the UK did not complete this survey.
The report (correctly) cautions:
There is a broad consensus that physical and medical age assessment methods are not backed up by empirically sound medical science and that they cannot be assumed to result in a reliable determination of chronological age. Experts agree that physical and medical age assessment methods enable, at best, an educated guess. In addition to the scientific weaknesses and inaccuracy of age assessment methods, several methods have been evidenced to have a harmful impact on the physical and mental health and wellbeing of the person undergoing age assessment … the use of invasive medical exams should be reduced to a minimum and has to remain a measure of last resort
(page 27, para 129).4See also Directive 2013/32/EU articles 19 and 25(5), the Separated Children in Europe Programme’s Position paper on age assessment in the context of separated children in Europe (May 2012, pages 8–9), Council Directive 2013/59/Euratom, and Age assessment practices: a literature review and annotated bibliography (UNICEF, 2011, pages 13–20).
The report notes that the use of potentially harmful ionising radiation for the purpose of age assessment, involving exposure to radiation for non-medical purposes for no therapeutic benefit, is in conflict with medical ethics and potentially unlawful (page 27, para 131).5See also Professor Sir Albert Aynsley-Green et al, ‘Medical, statistical, ethical and human rights considerations in the assessment of age in children and young people subject to immigration control’, British Medical Bulletin, June 2012, vol 102, issue 1, pages 17–42.
It advises that a person’s refusal to undergo an age assessment based on an X-ray examination should be respected without imposing any penalties (pages 27–28, para 131).6See also Age assessment: a technical note (UNICEF, January 2013, pages 12–14).
It is clear from the most recent UT judgments that the use of dental X-rays in assessing age is unreliable and of no assistance to judges or social workers in determining age (save in unusual circumstances involving a very young child). Consequently, this evidence is unlikely to feature in any ongoing or future proceedings. Local authorities will struggle to pursue or succeed in strike out applications founded on a refusal to submit to a dental X-ray or in seeking an adverse inference to be drawn from such a refusal. In addition, practitioners could rely on the ‘sufficient net benefit’ test in the Ionising Radiation (Medical Exposure) Regulations 2000. It is imperative that lawyers in the UK and EU pursue challenges to ensure that vital standards and safeguards for age assessment procedures are upheld and to ensure that they are integrated into child protection systems that promote the best interests of the child.