Joshua Swirsky appeared for the London Borough of Croydon in an important case in the Upper Tribunal which gives general guidance on the use of evidence of dental development in the assessment of age. This has proved to be a controversial issue given the vocal opposition of some politicians and the British Dental Association to the use of x-rays (dental panoramic tomographs) in the assessment of the age of young asylum seekers.
The age of an asylum seeker is important as those under the age of 18 when they arrive in the UK are entitled to be accommodated by the local authority under s20 of the Children Act 1989 and then to have the benefit of all the leaving care duties imposed on local authorities with respect to children. Local authorities frequently seek a dental age assessment either as part of the assessment process or as additional evidence in a fact finding hearing in the Upper Tribunal.
In practice there are 2 broad methods of dental age assessment. The first involves an examination of the dental panoramic tomograph to determine the maturity of the teeth using the Demirjian system of stages. Then the maturity of the teeth is compared to a reference data set using the Simple Average method of statistical analysis. This methodology is useful in assessing the statistical probability of a young person being a particular age, however, it only works when there are immature teeth (i.e. at least 1 tooth has not reached Demirjian Stage H).
The second method is only used when all the subject’s teeth have reached Demirjian Stage H. This involves an analysis of the lower left 3rd molar (i.e. wisdom tooth). Recent scholarship has undermined the efficacy of this methodology and it is no longer widely used. Instead new methodologies are being developed based on 3 Mandibular Markers: Root Canal Width, Periodontal Ligament Visibility and Root Pulp Visibility. The science on these markers is still developing.
In giving his guidelines Judge Ockleton (the Vice-President of the Upper Tribunal) held that the risks from an x-ray should be disregarded as they were the equivalent to the risks from a single short-haul flight, thus disposing of the popular objection to dental age assessments. However, he went on to remind practitioners and judges that a statistical analysis merely produced a probability and could not be determinative in any particular case. A dental age assessment could therefore form a useful part of the evidence but it should not be relied upon as the main basis for a decision.
His conclusion was that there was a place for dental age assessments in Upper Tribunal age assessment hearings. Indeed the first methodology based on immature teeth could be very useful in providing support for a young person claiming to have a younger age than her assessed age. On the other hand Judge Ockleton held that the second methodology was based on a developing body of science and had not yet received widespread support from the scientific community. Until such time as it did this methodology should only be used with caution. A Court or Tribunal should always be made aware of (a) the fact that all that could be produced was a probability, (b) that this was a developing area of knowledge which had not yet achieved general acceptance, and (c) that it was generally impossible, because of the size and composition of the reference data sets, to make a proper allowance for the ethnicity of the subjects, who frequently came from Afghanistan, Iran, Eritrea and Vietnam.
This particular case involved a dispute as to the age of two Afghani males, ZM and SK, who claim to have been under the age of 15 when they arrived in the UK but were assessed as being ‘over 18’ by Croydon. Following the hearing and having received a dental assessment showing immature teeth and with a dentally assessed age of 14 Croydon accepted the claimed age of ZM and his application for Judicial Review was withdrawn. SK’s claim is ongoing in the Upper Tribunal.