Décision n° 2018-768 QPC du 21 mars 2019
| Publisher | France: Conseil constitutionnel |
| Publication Date | 21 March 2019 |
| Citation / Document Symbol | ECLI:FR:CC:2019:2018.768.QPC |
| Cite as | Décision n° 2018-768 QPC du 21 mars 2019, ECLI:FR:CC:2019:2018.768.QPC, France: Conseil constitutionnel, 21 March 2019, available at: https://www.refworld.org/cases,FRA_CC,5cae0bf84.html [accessed 26 October 2019] |
| Comments | Full text of the decision available at https://www.conseil-constitutionnel.fr/decision/2019/2018768QPC.htm |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
France – Constitutional Council decides on the constitutionality of bone tests to determine age of migrant children
On 21 March, the French Constitutional Council delivered its decision on the conformity of bone tests in age assessment procedures with the country's Constitution.
The case was brought before the Council in the form of a preliminary priority question by a Guinean national, whose status as a minor had not been recognised by the French authorities. The applicant claimed, inter alia, that the radiological examination of bones violated the principle of the best interests of the child, as it resulted in unaccompanied minors being excluded from the beneficial provisions designed to protect them.
The Court first reiterated the constitutional character of the principle of the best interests of the child and stated that such a principle requires that the rules relating to age assessment must be accompanied by respective safeguards to ensure that minors are treated as minors. It further noted that, according to scientific information, the results of this type of tests may contain a significant margin of error.
It noted, however, that domestic legislation has provided that only a judicial authority may decide to use such an examination. This authority will also ensure that the subsidiary nature of this examination, namely its use only in cases of lack of identity documents, is always respected. Moreover, the Court added that the consent of the person concerned is of central importance, as the age of a person cannot be inferred solely on the basis of their refusal to be subject to this kind of examination. Lastly, the existence of a margin of error cannot support an argument of unconstitutionality, as the law has provided for a compulsory mention of the exact margin of error on the test results.
Furthermore, these conclusions cannot be the sole basis for determining the person's age but the judicial authority shall assess their age taking into account other elements, such as assessment reports and interviews with child protection services. In this context, it clarified that, if the test results are contradicting other elements of the aforementioned assessment and there is a persisting doubt, this doubt must be in favour of the person's status as a minor. The Council concluded that it is the responsibility of the competent administrative and judicial authorities to give full effect to the prescribed guarantees and, in this sense, the legislature has not disregarded the constitutional requirement to protect the best interests of the child.
Based on an unofficial translation by the ELENA Weekly Legal Update of 29 March 2019
