Int J Legal Med DOI 10.1007/s00414-014-1043-8
LETTER TO THE EDITOR
Comments to Focardi et al., Age estimation for forensic purposes in Italy: ethical issues Ernst Rudolf
Received: 14 April 2014 / Accepted: 1 July 2014 # Springer-Verlag Berlin Heidelberg 2014
Dear Editor, We would like to thank Focardi et al. for dealing with a certain aspect of forensic age estimation. Please allow us to add a few remarks on that topic. An ‘ethical’ debate accompanies the age question especially in asylum-related proceedings since the intense discussions in the 1990s in European countries like Austria, Germany, the Netherlands and Switzerland (e.g. [1–4]). The limitations of the Greulich-Pyle atlas 1959 [5], clinical staging of ‘wisdom tooth’-eruption and biometric data next to missing reference studies were mentioned as well as standards concerning legal age dispute procedures demanded. The critique initiated a process leading to specific legal and scientific backgrounds. Already in 1997, EU regulations suggested the use of medical professional evidence for asylum-related age differentiation justifying furthermore radiological imaging within medicolegal procedures [6, 7], both positions being reiterated into the ‘Common European Asylum System’ [8, 9]. Three years later, the multidisciplinary ‘German Study Group on Forensic Age Diagnostics’ (AGFAD) was founded, providing since then regular meetings, a number of guidelines for age assessments within various legal contexts based on numerous publications plus qualification trials for forensic experts on a yearly basis [10]. The international production of scientific literature on that topic grew immensely. After all that, the currently existing legal and scientific framework already observes ‘ethical issues’ as mentioned by Focardi et al. and especially: age assessment “only if serious doubts about the child’s age exist” and as a ‘matter of last resort’; the necessity of ‘guardianship’ during the process; ‘informed consent’ and “the presence of an interpreter”; judging each case by its own individual merits oblivious of “sex, E. Rudolf (*) Wiesenstr 20, 4800 Attnang-Puchheim, Austria e-mail: [email protected]
race, religion, nationality and immigration status”; observation of the ‘minimization principle’ taking into account possible previous age estimations in other European countries; the ‘benefit of the doubt’ risking underestimation of age but avoiding overestimation; the “prescription and performance of medical acts by licensed medical professionals” and its interpretation by independent experts plus the observation of the ‘minimum age concept’ [11]. Though, not only Focardi et al. neglect the historical dimension of the age assessment issue. In the past, a fair number of authors chose to ignore it as well, amounting to the “presumption that someone claiming to be under 18 years of age will be treated as such” [12]. At that point, some notions should be considered. First of all, age allegations within legal context can hardly be severed from associated consequences inducing “maybe an incentive for misrepresentation” [13]. Throughout the last years, approximately 13,000 migrants/year, in many cases ‘sans papiers’, officially declared ‘unaccompanied age minority’ applying for international protection in the EU Member States [14]. Furthermore, in many European countries, high counts of individuals proclaim undocumented underage in criminal proceedings [15, 16]. The sheer quantity of such caseloads exerted a remarkable pressure on legal systems, since advancing age minority in whatever legal context implies lodging a claim to certain benefits, which unavoidably oblige administrative authorities to put down facts and circumstances according to procedural law before determining the applicable legal background. Hence, it looks a strange, though often repeated argument, that forensic age estimation “should only be requested, when this is considered to be in the best interest of the child”, misconceiving the character of an age dispute already deriving from evidence-based doubts towards assertions [17]. Also like other authors (e.g. [18–22]), Focardi et al. unfortunately refer to outdated guidelines of the ‘Royal College of Paediatrics and Child Health’ [23], which are of mere
Int J Legal Med
historical interest. The ‘Royal College’ itself withdrew its recommendations already in 2009 [24], to our knowledge without replacement so far, asking a “stronger endorsement of medical evidence” after a UK High Court decision ruling, that “Doctors no better at assessing young person’s age than experienced social workers” [25]. The same goes for ‘psychosocial age estimation’ again dating back to the 1990s, a time when sufficient age differentiation based on somatic parameters was impossible due to lacking backgrounds promoting the curious idea within this context of “clearing interviews” for “cognitive, behavioural and emotional assessment” [26, 27]. Since then, not a single reliable reference study regarding a ‘psychosocial’ approach for age differentiation along a cut-off age has ever been brought forward characterizing such guessing inexplicable [28]. Moreover, Focardi et al. repeat a peculiar argument concerning medical inspection. A legitimate physical examination in tune with the relevant standards conducted by an MD should not be considered to be ‘highly intrusive’ but reasonable as finally discussed by Parzeller [29]. It might be added that due to a wide interindividual and interethnical variability by “examination of…sexual characteristics”—only after informed consent—no age estimation is intended, but signs of diseases potentially intermingling with somatic development are sought after [10]. Hence, Tanners’ clinical staging plays a secondary role within this context, even if such documentation is evaded by an individual, since the burden of proof then migrates to the party in question. Focardi et al. rightly address the problems associated with clavicular CT scanning for age estimation purposes. Still one should mention important exclusion criteria for such imaging being applicable only after various levels of selection, i.e. after legal authorities establish serious doubts towards asserted age minority based on the usual means of procedural evidence and not rarely from alias-identities, after thorough anamnesis/ clinical inspection excludes relevant disorders and after a conventional X-ray presents fully ossified forearm/hand skeleton preventing early teenagers prior to the 16th year of life from such investigation [30]. In other words, adolescents residing in their late teenage according to own allegations are subjected to clavicular CT imagery. Concerning the health risk of radiation exposure for forensic age estimation purposes, we would rather point to in-depth discussions putting its actual meaning into perspective [31]. In addition, Focardi et al. cite another invalid statement considering clavicular CT imaging “a useful examination when 21 years is the age threshold of interest” ([32] and the update [30]). Instead, it should be noted that clavicular formation is by far the most important criterion to determine the ‘coming of age’, providing a ‘probability beyond reasonable doubt’ [10, 33, 34]. Reducing the AGFAD standard, as Focardi et al. seem to suggest, wisdom tooth and forearm/hand evaluation is rarely able to distinguish
along the majority cut-off with the necessary probability, since ultimate differentiation of these sites may occur well before that limit [35–38]. In conclusion, it appears inappropriate to drag on topics on age estimation from the 1990s’ discussion, ignoring the complex body of medical knowledge and legislation, that have replaced observational based soft evidence of these days by solid facts in line with “international protocols and guidelines”. At present, declared non-adult status is an a priori accepted condition within legal procedures, until an age dispute proves the contrary with the highest possible probability. Respecting ethical issues as mentioned by Focardi et al., such decision-making is based amongst other on medical expert opinion located within a complex legal and scientific framework turning determination of ‘forensic age’ into a highly ritualized process with little room to manoeuvre.
References 1. Röggla G (2000) Austria bans non-clinical estimation of age. Lancet 355/9213:1440 2. Van Ree CJ, Schulpen TW (2001) Ethical shortcomings of skeletal age determination to establish minority for single young asylum seeker. Ned Tijdschr Geneeskd 145/5:229ff 3. Gattiker M (2000) Rechtliche Probleme der Altersbestimmung bei minderjährigen Asylsuchenden. Asyl 15/1:16ff 4. Laier T (1995) Die Zulässigkeit von Röntgenaufnahmen der Hand zum Zweck der Altersfeststellung bei unbegleiteten minderjährigen Flüchtlingen 5. Greulich WW, Pyle SI (19592) Radiographic atlas of skeletal development of the hand and wrist 6. Council Directive 97/43/Euratom (30.06.1997) Art 2, Art 3 Abs l l d 7. Council Resolution 97/C 221/03 (26.06.1997) Art 4 l 3 8. Council Directive 2013/59/Euratom (05.12.2013) Art 22, Annex V l 5 9. Council Directive 2013/32/EU (26.06.2013) Ch II Art 25 l 5 10. Schmeling A, Garamendi PM, Prieto JL, Landa MI (2011) Forensic age estimation in unaccompanied minors and young living adults in: Vieira DN (ed), Forensic medicine – from old problems to new challenges, 77ff 11. Schulz R, Schiborr M, Pfeiffer H et al (2013) Sonographic assessment of the ossification of the medial clavicular epiphysis in 616 individuals. For Sci Med Pathol 9/3:351ff 12. Separated Children in Europe Programme (2000) Training guide 13. UNHCR (1997) Guidelines on policies & procedures in dealing with unaccompanied children seeking asylum, 5.11 14. Eurostat statistics on unaccompanied minors 2012 and 2013 (2014) 15. Schmidt S, Knüfermann R, Tsokos M, Schmeling A (2009) Forensische Altersdiagnostik bei Lebenden am Institut für Rechtsmedizin der Charité—Universitätsmedizin Berlin: Analyse der im Zeitraum 2001–2007 erstatteten Gutachten. Arch Kriminol 224:168ff 16. Schmeling A, Olze A, Reisinger W et al (2003) Statistical analysis and verification of forensic age estimation of living persons in the Institute of Legal Medicine of the Berlin University Hospital Charité. Leg Med 5:367ff 17. Separated Children in Europe Programme (2012) Position paper on age assessment in the context of separated children in Europe 18. Hjern A, Brendler-Lindqvist M, Norredam M (2012) Age assessment of young asylum seekers. Acta Paediatr 101/1:4ff
Int J Legal Med 19. Smith T, Brownlees L (2011) Age assessment practices: a literature review & annotated bibliography 20. Roscam Abbing HDC (2011) Age determination of unaccompanied asylum seeking minors in the European Union: a health law perspective. Eur J Health Law 18:11ff 21. Aynsley-Green A (2011) The assessment of age in undocumented migrants 22. Pruvost MO, Boraud C, Chariot P (2010) Skeletal age determination in adolescents involved in judicial procedures: from evidence-based principles to medical practice. J Med Ethics 36:71ff 23. Royal College of Paediatrics and Child Health (1999) The health of refugee children—guidelines for paediatricians 24. Royal College of Paediatrics and Child Health (24.02.2009) College statement on the role of paediatricians in the age assessment of unaccompanied young people seeking asylum 25. Dyer C (2009) Doctors no better at assessing young person’s age than experienced social workers, High Court rules. BMJ 338:b2056 26. Coram Children’s Legal Centre (2000) Practice guidelines for age assessment of young unaccompanied asylum seekers 27. Dibnah M (2008) Asylum seekers and age determination 28. Dyer C (2011) Judge criticises paediatrician for claiming to know how to assess age of asylum seekers. BMJ 342:d3816 29. Parzeller M (2011) Rechtliche Aspekte der forensischen Altersdiagnostik. Rechtsmedizin 21/2:12ff 30. Schmeling A, Grundmann C, Fuhrmann A et al (2008) Criteria for age estimation in living individuals. Int J Legal Med 122/6:457ff 31. Schmeling A, Schmidt S, Schulz R et al (2010) Practical imaging techniques for age evaluation. In: Black S, Aggrawal A, Payne-James J (ed) Age estimation in the living. The practioners guide. WileyBlackwell, 130ff
32. Schmeling A, Olze A, Reisinger W, Geserick G (2001) Age estimation of living people undergoing criminal proceedings. The Lancet 358:89f 33. Wittschieber D, Schulz R, Vieth V et al (2014) The value of substages and thin slices for the assessment of the medial clavicular epiphysis: a prospective multi-center CT study. For Sci Med Pathol 10/2:163ff 34. Kellinghaus M, Schulz R, Vieth V et al (2010) Forensic age estimation in living subjects based on the ossification status of the medial clavicular epiphysis as revealed by thin-slice multidetector computed tomography. Int J Legal Med 124/2:149ff 35. Tisè M, Mazzarini L, Fabrizzi G et al (2011) Applicability of Greulich and Pyle method for age assessment in forensic practice on an Italian sample. Int J Legal Med 125:41ff 36. Knell B, Ruhstaller P, Prieels F, Schmeling A (2009) Dental age diagnostics by means of radiographical evaluation of the growth stages of lower wisdom teeth. Int J Legal Med 123:465ff 37. Baumann U, Schulz R, Reisinger W et al (2009) Reference study on the time frame for ossification of the distal radius and ulnar epiphyses on the hand radiograph. For Sci Int 191:15ff 38. Olze A, Schmeling A, Taniguchi M et al (2004) Forensic age estimation in living subjects: the ethnic factor in wisdom tooth mineralization. Int J Legal Med 118:170ff
Note The author delivers forensic medical expert reports in Austrian asylum cases.
LETTER TO THE EDITOR
Comments to Focardi et al., Age estimation for forensic purposes in Italy: ethical issues Ernst Rudolf
Received: 14 April 2014 / Accepted: 1 July 2014 # Springer-Verlag Berlin Heidelberg 2014
Dear Editor, We would like to thank Focardi et al. for dealing with a certain aspect of forensic age estimation. Please allow us to add a few remarks on that topic. An ‘ethical’ debate accompanies the age question especially in asylum-related proceedings since the intense discussions in the 1990s in European countries like Austria, Germany, the Netherlands and Switzerland (e.g. [1–4]). The limitations of the Greulich-Pyle atlas 1959 [5], clinical staging of ‘wisdom tooth’-eruption and biometric data next to missing reference studies were mentioned as well as standards concerning legal age dispute procedures demanded. The critique initiated a process leading to specific legal and scientific backgrounds. Already in 1997, EU regulations suggested the use of medical professional evidence for asylum-related age differentiation justifying furthermore radiological imaging within medicolegal procedures [6, 7], both positions being reiterated into the ‘Common European Asylum System’ [8, 9]. Three years later, the multidisciplinary ‘German Study Group on Forensic Age Diagnostics’ (AGFAD) was founded, providing since then regular meetings, a number of guidelines for age assessments within various legal contexts based on numerous publications plus qualification trials for forensic experts on a yearly basis [10]. The international production of scientific literature on that topic grew immensely. After all that, the currently existing legal and scientific framework already observes ‘ethical issues’ as mentioned by Focardi et al. and especially: age assessment “only if serious doubts about the child’s age exist” and as a ‘matter of last resort’; the necessity of ‘guardianship’ during the process; ‘informed consent’ and “the presence of an interpreter”; judging each case by its own individual merits oblivious of “sex, E. Rudolf (*) Wiesenstr 20, 4800 Attnang-Puchheim, Austria e-mail: [email protected]
race, religion, nationality and immigration status”; observation of the ‘minimization principle’ taking into account possible previous age estimations in other European countries; the ‘benefit of the doubt’ risking underestimation of age but avoiding overestimation; the “prescription and performance of medical acts by licensed medical professionals” and its interpretation by independent experts plus the observation of the ‘minimum age concept’ [11]. Though, not only Focardi et al. neglect the historical dimension of the age assessment issue. In the past, a fair number of authors chose to ignore it as well, amounting to the “presumption that someone claiming to be under 18 years of age will be treated as such” [12]. At that point, some notions should be considered. First of all, age allegations within legal context can hardly be severed from associated consequences inducing “maybe an incentive for misrepresentation” [13]. Throughout the last years, approximately 13,000 migrants/year, in many cases ‘sans papiers’, officially declared ‘unaccompanied age minority’ applying for international protection in the EU Member States [14]. Furthermore, in many European countries, high counts of individuals proclaim undocumented underage in criminal proceedings [15, 16]. The sheer quantity of such caseloads exerted a remarkable pressure on legal systems, since advancing age minority in whatever legal context implies lodging a claim to certain benefits, which unavoidably oblige administrative authorities to put down facts and circumstances according to procedural law before determining the applicable legal background. Hence, it looks a strange, though often repeated argument, that forensic age estimation “should only be requested, when this is considered to be in the best interest of the child”, misconceiving the character of an age dispute already deriving from evidence-based doubts towards assertions [17]. Also like other authors (e.g. [18–22]), Focardi et al. unfortunately refer to outdated guidelines of the ‘Royal College of Paediatrics and Child Health’ [23], which are of mere
Int J Legal Med
historical interest. The ‘Royal College’ itself withdrew its recommendations already in 2009 [24], to our knowledge without replacement so far, asking a “stronger endorsement of medical evidence” after a UK High Court decision ruling, that “Doctors no better at assessing young person’s age than experienced social workers” [25]. The same goes for ‘psychosocial age estimation’ again dating back to the 1990s, a time when sufficient age differentiation based on somatic parameters was impossible due to lacking backgrounds promoting the curious idea within this context of “clearing interviews” for “cognitive, behavioural and emotional assessment” [26, 27]. Since then, not a single reliable reference study regarding a ‘psychosocial’ approach for age differentiation along a cut-off age has ever been brought forward characterizing such guessing inexplicable [28]. Moreover, Focardi et al. repeat a peculiar argument concerning medical inspection. A legitimate physical examination in tune with the relevant standards conducted by an MD should not be considered to be ‘highly intrusive’ but reasonable as finally discussed by Parzeller [29]. It might be added that due to a wide interindividual and interethnical variability by “examination of…sexual characteristics”—only after informed consent—no age estimation is intended, but signs of diseases potentially intermingling with somatic development are sought after [10]. Hence, Tanners’ clinical staging plays a secondary role within this context, even if such documentation is evaded by an individual, since the burden of proof then migrates to the party in question. Focardi et al. rightly address the problems associated with clavicular CT scanning for age estimation purposes. Still one should mention important exclusion criteria for such imaging being applicable only after various levels of selection, i.e. after legal authorities establish serious doubts towards asserted age minority based on the usual means of procedural evidence and not rarely from alias-identities, after thorough anamnesis/ clinical inspection excludes relevant disorders and after a conventional X-ray presents fully ossified forearm/hand skeleton preventing early teenagers prior to the 16th year of life from such investigation [30]. In other words, adolescents residing in their late teenage according to own allegations are subjected to clavicular CT imagery. Concerning the health risk of radiation exposure for forensic age estimation purposes, we would rather point to in-depth discussions putting its actual meaning into perspective [31]. In addition, Focardi et al. cite another invalid statement considering clavicular CT imaging “a useful examination when 21 years is the age threshold of interest” ([32] and the update [30]). Instead, it should be noted that clavicular formation is by far the most important criterion to determine the ‘coming of age’, providing a ‘probability beyond reasonable doubt’ [10, 33, 34]. Reducing the AGFAD standard, as Focardi et al. seem to suggest, wisdom tooth and forearm/hand evaluation is rarely able to distinguish
along the majority cut-off with the necessary probability, since ultimate differentiation of these sites may occur well before that limit [35–38]. In conclusion, it appears inappropriate to drag on topics on age estimation from the 1990s’ discussion, ignoring the complex body of medical knowledge and legislation, that have replaced observational based soft evidence of these days by solid facts in line with “international protocols and guidelines”. At present, declared non-adult status is an a priori accepted condition within legal procedures, until an age dispute proves the contrary with the highest possible probability. Respecting ethical issues as mentioned by Focardi et al., such decision-making is based amongst other on medical expert opinion located within a complex legal and scientific framework turning determination of ‘forensic age’ into a highly ritualized process with little room to manoeuvre.
References 1. Röggla G (2000) Austria bans non-clinical estimation of age. Lancet 355/9213:1440 2. Van Ree CJ, Schulpen TW (2001) Ethical shortcomings of skeletal age determination to establish minority for single young asylum seeker. Ned Tijdschr Geneeskd 145/5:229ff 3. Gattiker M (2000) Rechtliche Probleme der Altersbestimmung bei minderjährigen Asylsuchenden. Asyl 15/1:16ff 4. Laier T (1995) Die Zulässigkeit von Röntgenaufnahmen der Hand zum Zweck der Altersfeststellung bei unbegleiteten minderjährigen Flüchtlingen 5. Greulich WW, Pyle SI (19592) Radiographic atlas of skeletal development of the hand and wrist 6. Council Directive 97/43/Euratom (30.06.1997) Art 2, Art 3 Abs l l d 7. Council Resolution 97/C 221/03 (26.06.1997) Art 4 l 3 8. Council Directive 2013/59/Euratom (05.12.2013) Art 22, Annex V l 5 9. Council Directive 2013/32/EU (26.06.2013) Ch II Art 25 l 5 10. Schmeling A, Garamendi PM, Prieto JL, Landa MI (2011) Forensic age estimation in unaccompanied minors and young living adults in: Vieira DN (ed), Forensic medicine – from old problems to new challenges, 77ff 11. Schulz R, Schiborr M, Pfeiffer H et al (2013) Sonographic assessment of the ossification of the medial clavicular epiphysis in 616 individuals. For Sci Med Pathol 9/3:351ff 12. Separated Children in Europe Programme (2000) Training guide 13. UNHCR (1997) Guidelines on policies & procedures in dealing with unaccompanied children seeking asylum, 5.11 14. Eurostat statistics on unaccompanied minors 2012 and 2013 (2014) 15. Schmidt S, Knüfermann R, Tsokos M, Schmeling A (2009) Forensische Altersdiagnostik bei Lebenden am Institut für Rechtsmedizin der Charité—Universitätsmedizin Berlin: Analyse der im Zeitraum 2001–2007 erstatteten Gutachten. Arch Kriminol 224:168ff 16. Schmeling A, Olze A, Reisinger W et al (2003) Statistical analysis and verification of forensic age estimation of living persons in the Institute of Legal Medicine of the Berlin University Hospital Charité. Leg Med 5:367ff 17. Separated Children in Europe Programme (2012) Position paper on age assessment in the context of separated children in Europe 18. Hjern A, Brendler-Lindqvist M, Norredam M (2012) Age assessment of young asylum seekers. Acta Paediatr 101/1:4ff
Int J Legal Med 19. Smith T, Brownlees L (2011) Age assessment practices: a literature review & annotated bibliography 20. Roscam Abbing HDC (2011) Age determination of unaccompanied asylum seeking minors in the European Union: a health law perspective. Eur J Health Law 18:11ff 21. Aynsley-Green A (2011) The assessment of age in undocumented migrants 22. Pruvost MO, Boraud C, Chariot P (2010) Skeletal age determination in adolescents involved in judicial procedures: from evidence-based principles to medical practice. J Med Ethics 36:71ff 23. Royal College of Paediatrics and Child Health (1999) The health of refugee children—guidelines for paediatricians 24. Royal College of Paediatrics and Child Health (24.02.2009) College statement on the role of paediatricians in the age assessment of unaccompanied young people seeking asylum 25. Dyer C (2009) Doctors no better at assessing young person’s age than experienced social workers, High Court rules. BMJ 338:b2056 26. Coram Children’s Legal Centre (2000) Practice guidelines for age assessment of young unaccompanied asylum seekers 27. Dibnah M (2008) Asylum seekers and age determination 28. Dyer C (2011) Judge criticises paediatrician for claiming to know how to assess age of asylum seekers. BMJ 342:d3816 29. Parzeller M (2011) Rechtliche Aspekte der forensischen Altersdiagnostik. Rechtsmedizin 21/2:12ff 30. Schmeling A, Grundmann C, Fuhrmann A et al (2008) Criteria for age estimation in living individuals. Int J Legal Med 122/6:457ff 31. Schmeling A, Schmidt S, Schulz R et al (2010) Practical imaging techniques for age evaluation. In: Black S, Aggrawal A, Payne-James J (ed) Age estimation in the living. The practioners guide. WileyBlackwell, 130ff
32. Schmeling A, Olze A, Reisinger W, Geserick G (2001) Age estimation of living people undergoing criminal proceedings. The Lancet 358:89f 33. Wittschieber D, Schulz R, Vieth V et al (2014) The value of substages and thin slices for the assessment of the medial clavicular epiphysis: a prospective multi-center CT study. For Sci Med Pathol 10/2:163ff 34. Kellinghaus M, Schulz R, Vieth V et al (2010) Forensic age estimation in living subjects based on the ossification status of the medial clavicular epiphysis as revealed by thin-slice multidetector computed tomography. Int J Legal Med 124/2:149ff 35. Tisè M, Mazzarini L, Fabrizzi G et al (2011) Applicability of Greulich and Pyle method for age assessment in forensic practice on an Italian sample. Int J Legal Med 125:41ff 36. Knell B, Ruhstaller P, Prieels F, Schmeling A (2009) Dental age diagnostics by means of radiographical evaluation of the growth stages of lower wisdom teeth. Int J Legal Med 123:465ff 37. Baumann U, Schulz R, Reisinger W et al (2009) Reference study on the time frame for ossification of the distal radius and ulnar epiphyses on the hand radiograph. For Sci Int 191:15ff 38. Olze A, Schmeling A, Taniguchi M et al (2004) Forensic age estimation in living subjects: the ethnic factor in wisdom tooth mineralization. Int J Legal Med 118:170ff
Note The author delivers forensic medical expert reports in Austrian asylum cases.
