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Case Note 2021/7

Communication 76/2019 R.Y.S. v. Spain

A missed opportunity to bring in a gendered approach to sexual abuse in the context of age-assessment procedures of unaccompanied minors in Spain

Details

Introduction

The age-determination methods used by Spain to decide whether young unaccompanied asylum seekers meet the threshold to receive protection as children has triggered a great deal of work for the Committee on the Rights of the Child (the Committee). At the time of writing, 40% of cases that the Committee has decided through its Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (CRC OP3) concern complaints about Spain’s procedures to determine the age of young asylum seekers travelling alone.

R.Y.S. v. Spain is one such case. The author, R.Y.S., claimed that the age assessment procedure used by Spain violated a number of her rights under the Convention on the Rights of the Child (CRC). R.Y.S was an unaccompanied migrant child who claimed to be fleeing sexual abuse inflicted by her father. This case is novel for two reasons: firstly, this is the only case brought before the Committee concerning Spain’s age-determination methods to involve an alleged victim of sexual abuse; and secondly, this is the first case concerning Spain’s age determination methods to be brought by a female author. This case note submits below that the Committee missed an important opportunity to incorporate these elements in its reasoning.

Outline of substantive issues

When R.Y.S., arrived at Madrid-Barajas Airport in August 2017, she was intercepted by police who registered her as an “asylum-seeking minor” and admitted her to a centre for the reception of children. A medical report confirmed that R.Y.S appeared to be 16 years old and recorded that she had the physical after-effects of violent abuse. R.Y.S. confirmed in an interview that her father had sexually abused her on multiple occasions in Cameroon.

R.Y.S. had travelled using an allegedly false Cameroonian passport, showing her date of birth as 10 May 1991. (R.Y.S. needed a false passport to extricate herself from the situation in which she found herself in, as asylum seekers are often forced to do (see paras 6.17 and 8.4 of the decision)). The passport was destroyed on the journey. On arrival she told the police that she was a child and her date of birth was 10 May 2001, as verified by her school documents. Her age was not questioned at this stage. The body responsible for her guardianship did not provide her with any information about her rights, nor was she given any support for her application for asylum (e.g. in obtaining the necessary documentation).

R.Y.S. expressed fear about getting in touch with her family members to obtain a passport to prove her age due to the abuse she claimed to have suffered there. Despite this, managers at the reception centre insisted that she do so. Ultimately, the reception centre requested the Prosecution Service initiate an age-determination procedure.

The age assessment consisted of bone age tests and a physical examination for which R.Y.S. was required to undress completely and have her genitalia examined. The wrist X-ray determined her bone age to be 17 years; however, due to a clerical error, this was recorded as 18 years in the relevant medical report, with no margin of error.1 R.Y.S. was not interviewed and no attempt was made to assess her psychological maturity. She was not assisted by a representative or an interpreter, nor was she informed of the results or the opportunity to object to the tests.

In November 2017, the Prosecution Service issued a decree, not subject to appeal, declaring R.Y.S. to be an adult. As a result, R.Y.S. was expelled from the reception centre. R.Y.S. sought for revocation of this decree before different administrative and court bodies, but all attempts were unsuccessful. Meanwhile, an administrative decision was made to not grant R.Y.S. protection, although R.Y.S. was not notified of this decision.

In February 2018, R.Y.S. filed an application for asylum, noting that she intended to contest the decree declaring her an adult. Her asylum application was granted in August 2019, however this granted her asylum as an adult as it used the date of birth found on the allegedly false passport she had used to flee Cameroon.

Procedural issues

Spain argued that the complaint should be declared inadmissible on three grounds: (1) R.Y.S. failed to exhaust domestic remedies; (2) the communication constitutes an abuse of the right of submission and (3) the communication is manifestly ill-founded.

Spain claimed that R.Y.S. failed to exhaust domestic remedies (as required under article 7(e) of the CRC OP3) for two reasons. Firstly, the asylum application was itself an effective remedy as it granted R.Y.S. asylum and, secondly, R.Y.S.’s attempt to exhaust domestic remedies was “superficial” as she had failed to provide reliable proof of her age. The Committee rejected these arguments highlighting that the positive outcome of R.Y.S.’s asylum application, which she was forced to submit as an adult rather than as a child, does not constitute a remedy. Furthermore, the Committee held that R.Y.S. had made effective use of the complaint mechanisms available to her.

Spain’s second objection concerning admissibility was that the communication constituted an abuse of the right of submission and was manifestly ill-founded under articles 7(c) and 7(f) of the CRC OP3. Spain alleged that it took into account R.Y.S.’s claim that she was a child and that, when R.Y.S. was ‘provisionally determined’ to be an adult, she did not provide any documentation to the contrary. The Committee dismissed Spain’s arguments on the basis that Spain failed to presume R.Y.S. was a minor and because R.Y.S.’s complaint consisted of other alleged violations including a failure to provide her with the necessary procedural guarantees and protection and care. The Committee proceeded to consider the merits of the complaint in relation to articles 3, 8, 12, 16, 20, 22, 27 and 39 CRC.

Findings

In its reasoning, the Committee focused mostly on the age assessment method used by Spain and how this impacted R.Y.S.’s rights enshrined in the CRC. In doing so the Committee repeats a number of declarations espoused in its previous decisions on age assessments:

  • The outcome of age assessments is of fundamental importance. The outcome determines whether a person is excluded from national protection as a child and the enjoyment of the rights contained in the CRC. (N.B.F. v. Spain, para. 12.3; A.L. v. Spain, para. 12.3)
  • The applicant should be given the benefit of the doubt, that is, presumed to be a minor. As a result, the best interests of the child should be a primary consideration throughout the age determination process. (N.B.F. v. Spain, para. 12.4; A.L. v. Spain, para. 12.3; the case note by Klaassen and Dorber questions this approach).
  • Documentation should be considered genuine unless there is evidence to the contrary. Only in the absence of identity documents or other appropriate evidence should States undertake age assessments, which should give the author the benefit of the doubt. (M.B. v. Spain, para. 9.9; A.L. v. Spain, para. 12.4; J.A.B. v. Spain, para. 13.7).
  • Age assessments done only via physical, and not psychological, means are inadequate. Age-assessments should take psychological maturity into account and be conducted in a gender and child sensitive manner, as stated in General Comment No. 6 (M.B. v. Spain, para. 9.11; A.L. v. Spain, para. 12.7; J.A.B. v. Spain, para. 13.6).
  • There is ample available information suggesting X-ray evidence lacks precision, has a wide margin of error and is therefore unsuitable for use as the sole method of assessing the chronological age of a young person (A.L. v. Spain, para. 12.6).
  • The appointment of a representative to defend the interests of a possible unaccompanied child is an essential guarantee of respect for a child’s best interests and their right to be heard during the age assessment process in accordance with articles 3 and 12 CRC (M.B. v. Spain, para. 9.12; A.L. v. Spain, para. 12.8; J.A.B. v. Spain, para. 13.7).
  • A child’s date of birth forms part of his or her identity and States Parties have an obligation to respect the right of the child to preserve his or her identity, as enshrined in article 8 CRC. (M.B. v. Spain, para. 9.15; A.L. v. Spain, para. 12.10; J.A.B. v. Spain, para. 13.10).

Applying the above, the Committee found a violation of a number of R.Y.S.’s rights. It noted that R.Y.S. was subjected only to physical examinations and that the examination of her genitalia to determine her sexual maturity was unnecessary given most girls reach full sexual maturity by 16 years. This examination was “all the more invasive” given R.Y.S.’s consistent claims that she had suffered sexual abuse. According to the Committee, all examinations involving nudity or examination of intimate parts for age assessments are an infringement of a child’s dignity, privacy and bodily integrity under article 16 CRC and should be precluded for the purpose of age assessment.

Furthermore, R.Y.S. was not provided with information on the purpose of the examination in a language she could understand, nor was a legal representative appointed, which the Committee found to be in violation of articles 3 and 12 CRC. Spain’s refusal to give R.Y.S.’s documentation any evidentiary value, and subsequent refusal to allow her to submit an asylum application using her real date of birth and age, despite her numerous requests, amounted to a violation of her right to identity under article 8 CRC.

The Committee also found that R.Y.S.’s inability to apply for asylum as a child violated her right to special protection (article 20(1) CRC) and to asylum (article 22 CRC) and would have put her at risk of irreparable harm in the event she was returned to Cameroon. The Committee underscored the potentially serious consequences of this lack of protection for a child subjected to sexual abuse by her father.

Finally, the Committee held that Spain’s failure to provide R.Y.S. with psychological support as an asylum-seeking child and victim of abuse violated her rights under articles 27 and 39 CRC.2 R.Y.S. was not provided with psychological assistance until eight months after her arrival and this was not provided by a professional trained in working with child abuse victims.

To remedy the violations of articles 3, 8, 12, 16, 20(1), 22, 27 and 39 CRC, the Committee directed Spain to provide two types of remedies: an individual remedy to R.Y.S. (requiring that she be provided with adequate compensation, receive specialised psychological counselling and that her date of birth be rectified on her identity documents); and a general remedy requiring systemic changes to age determination procedures.

The general remedy required Spain to: (1) ensure that all procedures for determining the age of young persons are in line with the CRC and that genital examinations never be used as a method of age determination; (2) ensure the appointment of a competent guardian for all young unaccompanied asylum seekers claiming to children; (3) develop an effective and accessible redress mechanism for unaccompanied children to apply for review; (4) provide training for relevant professionals (integrating a gender perspective where migrant girls are involved); and (5) ensure that unaccompanied children who claim to be victims of violence receive psychosocial counselling to facilitate their rehabilitation.

Commentary

The substance of the complaint and the corresponding views of the Committee offer little new direction in the context of age-assessment procedures of unaccompanied minors in Spain. Its reasoning repeats a number of principles found in previous decisions and the systemic remedies, which are detailed and set out well the requirements to align age assessment procedures with the CRC, also largely reproduce those found in earlier jurisprudence.3This is understandable given the volume of cases pending before, and already heard by the Committee on age assessment processes in Spain. Moreover, the Committee, tasked with monitoring States Parties’ implementation of the most ratified human rights treaty in the world, has relatively limited resources at its disposal for the work required of it. Following a familiar formula in analogous cases seems sensible from a time and resource saving perspective. Nonetheless, given this is the first decision concerning a female victim of sexual abuse in this context, the Committee could have seized this opportunity to elaborate more upon the significance of the gender aspects of this case.

A gendered approach to sexual abuse

All children, no matter their gender, can be subjected to sexual abuse. In the Committee’s own words “[b]oth girls and boys are at risk of all forms of violence, but violence often has a gender component.” (General Comment No. 13, para. 19). The Committee has previously produced important guidance on the gender component of violence, including sexual violence, in a number of its General Comments. The Committee has recommended that States Parties ensure that policies and measures take into account the different risks facing girls and boys in respect of various forms of violence in various settings (General Comment No. 13, para. 72); recommended States Parties implement a robust gender analysis for migration policies (Joint General Comment with the Committee on the Protection of the Rights of All Migrant Workers, No. 22, para. 24) and highlighted the need for States Parties to challenge patriarchal and other harmful gender norms (General Comment No. 20, para. 28).

The Committee missed this unique opportunity to contextualise this guidance in the case of R.Y.S v. Spain. Instead, the Committee swept over the issue in broad terms without exploring more deeply the need for special sensitivity when it comes to assessing the age of a young unaccompanied female claiming to be a victim of sexual abuse. For instance, the Committee highlights the need for ‘gender sensitive’ mental health care without any explanation of why this is needed or what this requires in practice (para. 8.15 of the decision). Similarly, as a remedy, the Committee required Spain to train relevant professionals on a ‘gender perspective’ without elaborating more upon what a ‘gender perspective’ entails.

During adolescence, gender inequalities become more significant (General Comment No. 20, para. 27) and a teenage girl subjected to sexual abuse may experience a genital examination differently to a teenage boy subjected to the same abuse. The Committee does not seize this opportunity to contextualise the particular vulnerabilities adolescent girls seeking asylum face, such as risk of gender-based violence, trafficking or exploitation (General Comment No. 6, paras 3, 50). Nor does the Committee appear to question why, in all the cases brought against Spain involving age assessments of male authors genital examinations have apparently not been involved, suggesting the existence of discriminatory, potentially even abusive, practices in Spain’s age assessment procedures. The Committee’s clear condemnation of all examinations involving nudity is certainly welcome, but elaborating further upon the gendered dimension of nudity could have strengthened its reasoning.

In a similar vein, the Committee could have applied a more gendered approach to its identification of rights violations. Although the Committee noted in its decision that the genital examination of R.Y.S. was ‘more invasive’ given her claims she had suffered sexual abuse, it does not consider gender when finding that her rights to privacy, and dignity were violated. Similarly, the Committee limits its application of article 3 CRC to the need to ensure a representative is appointed, a valuable message, but one that has been repeatedly told.4 The Committee could have also used an analysis of article 3 to highlight the need for special sensitivity concerning female victims of sexual abuse.

As for the remedies, the only mention of gender is, as noted above, the requirement that Spain provide training that incorporates a ‘gender perspective’. Arguably, child protection authorities should have been targeted as a group requiring training given their apparent insensitivity to R.Y.S.’s situation in insisting that she contact her family for a passport, despite her claim she was abused by her father. The Inter-American Court of Human Rights has gone further in incorporating gender in systemic remedies, requiring that training on women’s rights engenders due diligence during proceedings and overcoming social stereotypes5 (See also Rubio-Marín and Sandoval, 2011) and highlighting the importance of incorporating the voice of girls and children in formulating public prevention policies (Guzmán Albarracín y otras, para. 245).

Lack of information and child-responsive administrative processes

Underlying R.Y.S.’s complaint is the lack of information she received at multiple stages of the proceedings. The Committee has previously highlighted the importance of access to child-sensitive information before, during and after justice proceedings for the fulfilment of article 12 CRC (General Comment 12, para. 82). Although the right to information has been elaborated upon in the context of juvenile justice proceedings (see e.g., Council of Europe’s Guidelines on child-friendly justice and EU Directive 2016/800), child-friendly procedures have received far less attention in the context of administrative proceedings. (One exception is the Council of Europe’s Handbook for Professionals, How to Convey Child-Friendly Information to Children in Migration.) Access to child-friendly information in administrative contexts is critical for the implementation of children’s rights.

The lack of information was also a clear cause of delay in the time-sensitive age determination proceedings. Because R.Y.S. did not have access to the results or outcomes of numerous decisions, she did not know of the possibility to request a review. By the time the appeal is resolved R.Y.S. would be an adult: a point Spain tries to capitalise on by arguing the reason for the submission of the communication will become moot given R.Y.S. will reach the age of majority (para. 5.14). The delay, the number of steps the author took to contest the decree, and the time-sensitive nature of these types of proceedings highlight the need for justice systems that are more responsive to a child’s needs and interests.

Follow-up and enforcement

This case joins a succession of cases finding violations of the CRC in the age assessment procedures of unaccompanied children in Spain. The first of these was N.B.F. v. Spain, published in late 2018, the same year the Committee raised concerns about age determination procedures in its 2018 Concluding Observations of Spain (paras 44-45). As noted by those authors engaging in dialogue under the most recent follow-up progress report, Spain is yet to make any meaningful changes to its age-determination procedures and is essentially disregarding the Committee’s previous decisions.6

While the Committee must do its best to address the lack of political action by Spain, its means are limited. Litigants could also do more, for example, by utilising the inquiry procedure available under article 13 of the CRC OP3, given the vast number of complaints against Spain, which may receive more attention and generate greater pressure.

Conclusion

The IRCF has recently found that the number of children on the move, including those travelling alone, has grown substantially and alarmingly in the past decade. There is compelling evidence that a very large proportion of them are exposed to sexual and gender-based violence on their journeys; however, governments rarely provide adequate services and procedures for these children (IRCF, Alone and Unsafe, 2018).

This case presented a unique opportunity for the Committee to consider the gender dimensions of an age assessment procedure in Spain that violated the rights of a teenage girl. Although the Committee incorporated gender in its examination to an extent, it missed an opportunity to clarify concrete requirements for Spain in this context. Repeating declarations and following familiar formulas in cases concerning analogous facts saves the Committee valuable time and resources and may even mean more children’s claims can be heard through the CRC-OP3. Nonetheless, it is hoped the Committee can provide more clarification in its future views where a gender dimension is of significance. Identifying why gender may play a role in the first place, incorporating gender in deciding rights violations and setting out systemic remedies that are ‘gender sensitive’ could be a good place to start. Although the potential of the Committee, through its views, as well as in its Concluding Observations, to create systemic change in Spain’s age determination process may seem limited at this point in time, its potential to do so should not be disregarded.

  1. The scientifically recognised margin of error is between 20 and 24 months for this type of test (para. 2.7 of the decision).
  2. It is unclear in this paragraph of the decision (para. 8.15) if the Committee is referring to articles 27, 29 and 30 or articles 27 and 39 as each set of rights is referred to at the start and end of this paragraph. We believe the reference to articles 29 and 30 is a mistake as the Committee had ruled article 29 to be inadmissible (although it is again mentioned at para. 8.16) and article 30 is irrelevant to the case.
  3. See e.g., 24/2017 M.A.B. v. Spain, 27/2017 R.K. v. Spain, and 17/2017 M.T. v Spain.
  4. See e.g., 16/2017 A.L. v. Spain; 17/2017 M.T. v Spain; 22/2017 J.A.B. v. Spain; 24/2017 M.A.B. v. Spain and 27/2017 R.K. v. Spain.
  5. Gonzalez et al. ("Cotton Field") v. Mexico, Inter-American Court of Human Rights (ser. C) No. 205 (16 Nov. 2009), paras 451-2.
  6. Notably, Spain’s inaction in addressing gaps in age assessment procedures stands in contrast to the rapid action by Spain to address other complaints, also in the migration context, see e.g., the discontinuance decision concerning 111/2020 N.S. v. Spain.