The prompt for a revision of the original guidance was to reflect the provision of giving young people the benefit of the doubt in circumstances of assessing age, which was made an explicit duty for trafficking victims within the Trafficking and Exploitation (Scotland) Act 2015. However, young people are increasingly being given the benefit of the doubt for the purposes of support during the age assessment process in cases where the young person isn't necessarily thought to be a victim of trafficking. Whilst this has not been explicitly legislated for, this position is supported by case law.
Age assessments are a controversial and complex task and there is no way to conclusively determine a person's age. We recognise that the necessity to undertake an age assessment stems from the differences in support provided to adults and children. There has been much debate as to whether social workers should undertake age assessments at all. There is no global or even European consensus as to how best to undertake an age assessment, with some favouring physical assessments based on a medical model of assessment over a social model.
However, whilst acknowledging concerns, for young people whose age is unknown or disputed, age assessments are important. Age determines what a person's rights and entitlements are and what duties and powers apply when local authorities are considering whether or how best to support a young asylum claimant. In the absence of statutory guidance, the court system has been instrumental in setting out the minimum legal standards for an age assessment. The original case which set out these standards was R (B) v Merton  EWHC 1689 (Admin), giving rise to the term "Merton compliant" age assessment (see Appendix 6). There have been several leading cases in England & Wales and in Scotland since and whilst case law can be subject to change, we have compiled in Appendix 7 what appears to us to be, at the time of writing, the most relevant.
A legally compliant age assessment carried out to professional standards will serve the interests of both the young person and the assessing local authority, not least because of the possibility of a challenge to a decision through judicial review. An assessment cannot be made solely on the basis of appearance and should be a holistic one, taking account of the young person's appearance, demeanour, background and interaction with others. Adopting assessment practices that are in line with the Getting It Right For Every Child ( GIRFEC) national approach in Scotland which puts the rights and wellbeing of children and young people at the heart of the process will assist in avoiding unnecessary distress to the young person and cost later on.
Age assessments are triggered by uncertainty and their completion is frequently a difficult task. Much of this is due to the absence of easily verifiable information and a lack of straightforward physiological or cognitive tests which are not invasive and that can give a definitive answer with a narrow margin of error. Currently, best practice would appear to involve a blend of knowledge and experience, comprehensive information gathering and reasoned, evidenced judgement, safeguarded within a procedure which is transparent and meets the requirements of existing case law (see Appendix 7). By virtue of their unique blend of knowledge, skills and experience, social workers are best placed to lead holistic assessments of this type. However, as with any other assessment, this should be supported as far as possible with multi agency contributions.
The responsibility for conducting age assessments sits with the local authority where
the young person is residing. Since the publication of the original Age Assessment Guidance in 2012, information from local authorities indicates that there continues to be a highly uneven distribution between Scottish local authorities of cases requiring age assessment, with most concentrated in the major cities. This updated Guidance notes the challenge presented to authorities to meet what might (at the time of writing) be an infrequent or even rare requirement.
Whilst it is for local authorities to determine their approach to age assessment, the Guidance indicates the key principles and considerations that are relevant. It is intended to assist managers, social workers and other involved professionals by offering a framework that can be adapted to suit the particular situation of both the young person and the relevant local authority. Decisions about whether and how to apply the Guidance will rest with the assessing local authority and as each local authority (and individual social worker) will be required to account for their practice in the event of a legal challenge, it is hoped that this Guidance will give a sound foundation for developing good practice and decision making.
The process for carrying out age assessments should sit within a wider local framework of general procedures relating to children and young people. This includes for example child protection, looked after children and data protection considerations. This Guidance is intended to contribute to local arrangements to support practice in conducting age assessments which might include:
- A training and support strategy for social workers and others regarding working with young asylum seekers and refugees
- Arrangements to provide access to a suitable pool of staff who have experience in conducting age assessments and/or considering how staff can develop such experience before assuming responsibility for their production
- Opportunities for: job shadowing; continuous professional development through access to research; practice sharing though professional networks that include statutory and voluntary sector agencies; the provision of inter-professional advice
- Supervision arrangements that allow for reflection regarding assessment content and analysis and fit with assessment timescales
- The development of good practice arrangements concerning the identification, accreditation, use and support of interpreters
- Effective joint working arrangements, including data sharing agreements, between involved agencies, (particularly between health, educational and social work agencies) that allow for multi-agency involvement and timeous responses
- Quality assurance arrangements to support continuous evaluation