Wednesday, 25 November 2015

On Using Physiological or Biomedical Methods to Determine the Age of Unaccompanied Refugee Children

  In my country, there has for some time been a lot of political debate around how to handle the rising number of refugees from, primarily, Syria/Iraq, Afghanistan and North Africa. This as the pressure on border EU member states, and the impossible situation of trying to hold back people on the run from intolerable circumstances that I blogged about not so far ago, has meant that much more people are now entering Sweden to seek asylum in a short time, as most other member states are unwilling to participate in a scheme of sharing the economic and logistical load it means to process these requests in a way required by human rights and international agreements, as well as legal security. For, while there is no such thing as a right to have asylum, to seek it is an absolute international legal right, and already this means that a receiving country has a lot of obligations. And one group of refugee people towards which such obligations are especially strict are unaccompanied children, and many of these who actually arrive to Sweden are mostly in their teens, usually lacking certifiable identity documentation.

Now, yesterday, the Swedish government, pressed by the logistic and organisational pressure, declared that the already announced difficulties had now become intolerable, and that a number of measures was to be put into place to complement the already a few weeks back instigated active border controls (which, until then, had been non-existent in accordance with the so-called Schengen accord on free internal EU mobility). The move is very controversial, and many doubt that the logistical and organisational reasons cited are the only ones behind it, if nothing else, worries about how political opinion will shift in the presence of my country's anti-immigration, semi-racist party, the Sweden Democrats (see here, here and here), are bound to have played a part, as these are presently laying mostly low to wait things out after some botched attempts to take the initiative, and being actively ignored by the other parties, as it has announced that its only idea is to close the borders entirely. One thing is entirely clear, though, the problem behind the decision is neither one of money, nor one of space, Sweden has plenty and plenty of both of those, and neith is it about "volumes", as the term goes, but mostly about flow; not how many people arrive, but how many arrive in a short time.

 One of the measures decreed by the Government concerns the unaccompanied refugee children, and it is to (re)start using certain physiological or biomedical methods to ascertain the age of these children. No one is debating the need for such ascertaining, but the debate is about this particular proposal, as many Swedish medical specialists (for two international sources, see here and here) also the medical research specialist organisation Swedish Society of Medicine, point out that the proposed methods are very uncertain and have wide margins of error, up to 4 years plus or minus. This means that the risk is imminent that a child of 14 is determined to be an adult, and that Sweden would thus knowingly risk to default on its particularly strong and demanding obligations towards children. The fact that there is also a risk that some 21-year olds come to enjoy these special protections and care is a non-issue in that light. However, the government seems insistent, so what should be done? General refusal of doctors and other medical staff to participate in what has been proved to be unprofessional practice? (as they would seem to be required to do by the Swedish health and Medical Services Act)? This is certainly a live option from a medical ethical standpoint as well, although it also means that most unaccompanied refugee children are left without proof of age.

However, there is another solution, which would satisfy both the government's decree, the worries from the point of view, the need for unaccompanied refugee children to have their age ascertained, and the overwhelming reason to have Swedish policy abide by its own legal standards. This solution is, moreover, applicable to any method for this purpose. It rests on the assumption that for Sweden to meet its own legal requirements is a primary consideration that trumps other reasons and interests in this area. This means that overestimating a refugee child's age and assess this person as adult is far worse than underestimating a refugee adult's age and assess this person as a child. Based on this premise, we may now argue that, therefore, using a method for age assessment in this area that is uncertain, we should use it in a way that makes us err in the right direction. That is, to the extent that we draw faulty conclusions, these should rather be the wrongful classification of adults as children than the wrongful classification of children as adults. this rules gives us access to a simple mathematical solution to the conundrum: we simply adjust the conclusions drawn with the help of the method in light of its uncertainties, so that we are certain to err in the right direction. Thus, for any method, M, for the assessment of the age of a person, P, with a margin of error +/- X years, M is taken to indicate adulthood if, and only if, its result is 18+X years or higher, and otherwise taken to indicate childhood. Regarding the methods cited earlier, this would mean that a person who is apparently an unaccompanied refugee child (who lacks reliable documents), is concluded to be a child, as long as these methods do not declare the age to be 22 years or higher.

As said, this solution makes it possible to abide by the governmental decision, while acting inside medical professional and ethical boundaries, and while both securing the need of refugee children to have their age determined to claim their rights, and the paramount need for the state of Sweden to honour its own legal and international obligations.

Due to debates related to this post in other fora, here's an addendum I made a few days later.