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Baroness David: It is possible that that could happen. However, we must give children the benefit of the doubt and allow them every possible chance to prove their case, rather than assume that they may be in the wrong.
The Lord Bishop of Ripon: The amendment is similar to Amendment No. 49 which is tabled in my name. It is similar in that it puts the burden of proof of age on the immigration officials rather than on the child. However, it is different in other regards as my amendment does not refer specifically to Clause 1. When we come to deal with Amendment No. 49, I hope that we shall be able to debate it in full; but it seemed only right that I should speak on the matter of age determination in relation to Amendment No. 30.
The noble Baroness, Lady David, referred to children as being among the most vulnerable of those who seek asylum on our shores. As we know, it is the case that children are frequently those who suffer most from disorder, violence and civil war in their own countries. Indeed, that has been true throughout history from the massacre of the children in the time of King Herod through to Nazi Germany.
I am speaking now specifically about unaccompanied children who arrive in this country. They are in a highly vulnerable state. It is the case that the Home Office gives them particular consideration. In relation to detention, the Minister said that her understanding is that young people under the age of 17 are detained only as a very last resort. Clearly that is right.
However, despite that Home Office intention, it is the case that the Refugee Council has dealt with 54 unaccompanied asylum seekers under the age of 17 who had been detained. The vast majority of them were detained because the immigration service took the view that they were aged over 18. The problem arises because children travel without documents; with documents which do not belong to them; or with documents which state a false age. I believe that we are all aware of the kind of reasons why that might be so.
If a parent in the country of origin is in detention or in hiding, that often means that a child is unable to obtain a passport. One way of doing so is to present that child as being over the age of majority, in which case the passport on which the child travels gives the age as being over 18. That is then taken by the immigration officials as meaning that the child, in claiming to be under that age, is making a false claim. Further, many people are conscripted for military service under the age of 18 and authorities are often reluctant to allow youngsters coming up to that age to leave their country. Therefore, once again, there will be very strong pressure for those who are under 18 to present themselves as being of a different age.
Such disputes are very difficult to resolve. That is why the intention of the amendment--and of Amendment No. 49 standing in my name--is to say that the burden of proof in those circumstances must rest on
All of that indicates that the burden of proof of whether someone is over 18 years of age ought to rest on the immigration officials and not on the children who are making the claim. In the event of dispute, the balance should lie with the person making the claim rather than with those who are rejecting it.
Lord Renton: I trust that the right reverend Prelate will allow me to comment. I listened to what he said very carefully and I thought that he indicated that young people were justified in coming here in order to avoid military service in their own countries. If that is so, are we to treat them as people seeking asylum?
Lord Avebury: I should like to intervene briefly to point out to the right reverend Prelate that the use of X-rays for age determination is deplored by the British Medical Association and has been for the past 20 years since it was the subject of an investigation undertaken in my office. At that time, we submitted evidence to the BMA and to the Government showing that the practice was harmful and inaccurate. If I remember rightly--and it is a long time since the study was published--the average error in the use of X-rays for the purpose of age determination in children was plus or minus two years. Therefore, it would not be much good in deciding the cases that we are discussing this evening which are, by definition, on the borderline between 17 and 18.
Further, the use of X-rays for that purpose could be medically harmful. It was stated that they were not to be used in a procedure that was not clinically necessary for the young person. That is the absolute rule that is now adopted by the medical profession. It is known that X-rays are carcinogenic in however small a dose. Indeed, their use is to be avoided when it is for purposes other than clinical. Therefore, we should be extremely wary of suggesting that any scientific evidence could be brought forward that would help to decide the question of the person's age if that was in doubt.
However, it could perhaps be agreed that a group of paediatricians should be asked to advise and that their word would be acceptable both to the appellant and to the Secretary of State. I suggest a panel of them so that an average view could be taken of the opinions expressed. That would be the best way to sort out what is essentially a very difficult and subjective problem to which there is no absolute answer.
The Lord Bishop of Ripon: Perhaps I may just reply to the noble Lord, Lord Renton. Obviously, I did not make myself clear. The difficulty is that if one is, say, aged 17--that is, under the age of conscription--the authorities in a particular country may be very reluctant to allow a child of that age to leave because they may
In response to the noble Lord, Lord Avebury, I can only repeat that I am no medical authority; indeed, he may be right in what he says. However, my understanding is that X-rays had been used in the process. I was merely using them generally as an example of possible medical evidence.
Lord Hylton: Several Members of the Committee have correctly made the point that we are dealing with a very limited number of children per year. Whatever we may do in accepting or rejecting the amendment is not likely to increase that number significantly. Many of those children come from countries where records are simply not kept; or, indeed, if they are, they may have been destroyed or may not be capable of being found in a reasonable period of time.
For those reasons we should follow the line proposed by the noble Baroness, Lady David, and give the benefit of the doubt to anyone who might be an adult but could possibly claim to be a child. In addition, we should make absolutely certain that the most cast-iron and reliable arrangements for reception in any other country have been made before we even begin to consider sending back a child or possible child.
Baroness Williams of Crosby: I am proud to follow the remarks made by the noble Lord, Lord Hylton, who was right. It is a small number of people whose age is in question: unaccompanied children. They are young people incapable of presenting proof in some cases. As the noble Lord, Lord Hylton, pointed out, in countries like Ghana, where I taught, there are no records, birth certificates or other adequate proof of the age of a child. We know that a number of children have come to this country for whom medical proof suggests that they are under the age of 18. A current case is that of a young man who arrived here in December 1994, aged 15, according to medical advice. In April 1996 he is still in detention on the grounds that he may not be under the age of 18. He has been in and out of detention for 18 months. It seems to me appalling that a child against whom no crime is registered, save coming to this country to seek asylum, should be kept in detention for many months. That is not to the credit of our country.
I recognise that the Home Office has always made an exception for children once they are established as being children. The problem is that in some cases the evidence put forward by distinguished medical men and women has been refuted by the immigration service on the grounds that it does not agree.
I make one other point before we pursue this set of amendments on unaccompanied children. I believe that there is a good deal of evidence to show that children who are below the age of 18 and are returned, if it is held that they are above that age, will return to situations of extreme risk. The right reverend Prelate said that in some countries young children are now being forcibly recruited to serve in the military. Angola is one example, but there are many others. Young children are also forced into prostitution or crime. We are talking of a small number but a large principle.
It droppeth as the gentle rain from heaven".