The applicant, national of Gambia, was caught by National Police while attempting to enter Spain by a small boat and 3 days later was notified of a decree declaring him an adult, based on medical tests that were not recorded in his file. On 2 November 2018 the applicant was notified of a removal ordered issued by the Immigration office and on 3 November 2018 the Court of Investigation ordered the placement of the applicant in the Hoya Fria holding centre. However, the applicant remained in the custody of the National police station until 16 November 2018.

The applicant appealed against the removal order and contested also the Prosecutor’s Decree declaring him an adult and argued that the medical tests were mssing from the file and there was no communication date for those medical tests. His lawyer collected the medical results for him and 7 other minors and reported that the only performed tests on the minors were a wrist X-ray taken for a bone age assessment using the Greulich and Pyle atlas and a medical examination. The applicant alleged that these tests were done without his consent or an interpreter, that he was not attended by a professional specialised in the age determination process and that he was not assisted by a lawyer during the procedure. Moreover, the Prosecutor’s Office decree declaring him to be an adult stated that, in keeping with the Mincer method, a dental panoramic radiograph was taken with his informed consent, but the applicant claimed that this radiograph was not taken because the necessary equipment was out of service

In his complaint, the applicant underlined that the State party failed to respect his right to be presumed a minor in the event of doubt or uncertainty and thus acted against his best interests and in violation of article 3 of the Convention, that he was not appointed a legal guardian and other articles of the Convention were violated. The UN Committee on the Rights of the Child concluded to a violation of articles 3, 8, 12, and 20 (1) of the Convention and article 6 of the Optional Protocol. It mainly stated that the bone age test based on X-ray examination lack precision and have a wide margin of errors and it can not be used as a sole age determination method. In addition, the State failed to protect the applicant by assigning a legal representative for the age determination procedure and also, if need be, an interpreter, for all young persons claiming to be minors, as soon after their arrival as possible and at no charge.

The UNCRC made the following recommendations in order to an prevent similar violations in the future:

“(a) Ensure that all procedures for determining the age of young persons claiming to be children are in line with the Convention and, in particular, that in the course of these procedures: (i) The documents submitted by the young person concerned are taken into consideration and, if issued or authenticated by the relevant State authority or Embassy, accepted as genuine; (ii) The young person concerned is assigned a qualified legal representative or other representatives without delay and free of charge, any private lawyers chosen to represent the young person are recognized and all legal and other representatives are allowed to assist the young person during the age determination procedure; 18 N.B.F. v. Spain, para. 12.11. CRC/C/86/D/63/2018 GE.21-02591 11

(b) Ensure that unaccompanied young persons claiming to be under 18 years of age are assigned a competent guardian as soon as possible, even if the age determination procedure is still ongoing;

(c) Develop an effective and accessible redress mechanism that allows young unaccompanied migrants claiming to be under 18 years of age to apply for a review of any decrees declaring them adults issued by the authorities in cases where the age determination process was not accompanied by the safeguards needed to protect the best interests of the child and the right of the child to be heard;

(d) Provide training to immigration officers, police officers, officials of the Public Prosecution Service, judges and other relevant professionals on the rights of migrant children and, in particular, on the Committee’s general comment No. 6 (2005), joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families/No. 22 of the Committee on the Rights of the Child (2017) and joint general comment No. 4/No. 23 (2017).”