In the footsteps of Darboe and Camara – Age assessment of unaccompanied minors in A.C. v. France: between procedure and protection

By Sophie Bols

On 16 January 2025, the European Court of Human Rights issued another judgment, A.C. v. France, on age assessment procedures for unaccompanied minors and held that there was a violation of Article 8 ECHR. The Court emphasises the importance of procedural safeguards, reaffirming some of the findings established in Darboe and Camara v. Italy while expanding the scope of these formal safeguards to substantive protections. The case raised critical questions about states’ positive obligations under Article 8 concerning respect for private life. This judgment reflects the Court’s stance on the rights of unaccompanied minors, particularly on the presumption of minority and procedural safeguards in age assessment procedures. The Court’s line of reasoning in A.C. v. France has recently been followed by the judgment in F.B. v. Belgium of 6 March 2025. In this case, both the Human Rights Centre (HRC) and the Centre for the Social Study of Migration and Refugees (CESSMIR) at Ghent University submitted a third-party intervention, on which another Strasbourg Observers post has been written.

Facts

The applicant, A.C., is a Guinean national who upon arrival in France claimed to be an unaccompanied minor. A.C. was initially taken into emergency care by child protection services. After two weeks, a social assistant expressed doubts about A.C.’s minority, based on his speech and physical appearance. This statement prompted the French authorities to conduct an age assessment procedure, which included medical examinations. The authorities relied heavily on the results of the medical examinations. They did so despite the fact that, according to the scientific consensus at the time, such medical age tests could not provide certainty regarding whether an individual is a minor. Based on the medical testing, A.C.’s status as an unaccompanied minor was revoked and his special minority care was terminated. A.C. challenged this decision, submitting a Guinean birth certificate and other documents, which were deemed inadmissible due to uncertainty about their authenticity. After lengthy procedures, the decision was finally overturned in 2021 by the Court of Appeal, which determined A.C. was a minor and ordered reinstalment of special minority care. A.C. then brought a claim before the Court, claiming alone-standing violations of Articles 3, 6 § 1, 8, and a violation of Article 13 in conjunction with Article 8 ECHR.

Judgment

In its judgment, the Court examined whether France had fulfilled its positive obligation to provide adequate procedural safeguards in age assessment procedures under Article 8. The Court concluded that although the national legal framework provided such safeguards, their implementation in A.C.’s case had been insufficient.

Since the age assessment process directly impacts an individual’s private life, it falls under the scope of Article 8. To assess whether France violated this right, the Court applies the approach set out in Darboe and Camara v. Italy, examining the procedural safeguards embedded in national and international legal frameworks, and whether the authorities took reasonable measures to effectively guarantee these safeguards in practice. It identifies multiple instances in which the procedural safeguards were not met, ultimately concluding that the cumulative effect of these failings amounts to a violation of Article 8.

Firstly, there was a lack of transparency. The authorities failed to formally communicate the outcome of the age assessment. A.C. only learned of it when it was presented in the state’s defence before the Administrative Court. There was ‘nothing to show that the applicant had actually received a copy of the findings of the biological examination’ (para. 179). Secondly, evidentiary value was given to the (flawed) medical examination, even though it failed to acknowledge its margin of error. The scientific consensus at the time was that the test could not provide certainty on the individual’s age. Nevertheless, the authorities relied almost entirely on the result of this test, neglecting the applicant’s own statements and the documents he provided. Thirdly, there was an absence of personalised reasoning since the decision that rejected the presumption of minority lacked individualised justification. Furthermore, the Court observed that one decision contained no reasoning at all while another had only schematic reasoning unlikely to have properly informed the applicant on why he was no longer considered a minor. Lastly, the Court referred to the inadequate (and faulty) information on the legal remedies available and the time limitations for challenging this decision. It concluded that ‘France had rebutted the presumption of minority in respect to the applicant in such conditions as to deprive him of adequate procedural safeguards’ (para 182).

Despite this, A.C. managed to successfully overturn this decision later in a domestic court. However, due to his unjustified exclusion from special minority care during the prolonged legal dispute about his age, he endured significant hardship which had serious consequences for his private life. With six votes to one, the Court held that Article 8 was violated. In addition, the Court held unanimously that there was no violation of Article 13 in conjunction with Article 8. According to the Court, ‘remedies were available to the applicant by which the alleged violation of Article 8 of the Convention could be redressed’ (para. 220). This blogpost will not delve into the Court’s finding that there was no violation of Article 13. The judgment in A.C. v. France is accompanied by a dissenting opinion by Judge Mourou-Vikström, defending a broader interpretation of the state’s margin of appreciation.

Procedural safeguards in age assessment procedures

With its judgment in A.C. v. France, the Court reaffirms that the presumption of minority is a fundamental principle that national authorities must respect. It underscores the necessity of effective procedural safeguards in age assessment procedures, particularly in light of the best interests of the child, ‘which should prevail in all decisions concerning the child’ (para. 154). While the Court acknowledges that national authorities are, ‘in principle, better placed to establish the facts’ (in casu determining an individual’s age) and that they ‘enjoy a certain margin of appreciation in this regard’, it stresses that this discretion cannot justify measures infringing the rights of minors concerned (para 157).

This judgment is clear on the procedural safeguards states should implement. Following A.C. v. France, applicants must have access to the findings of the age determination process. The medical reports must explicitly indicate the margin of error. Decisions rebutting the presumption of minority must contain clear and individualised reasoning. Lastly, authorities must provide accurate and accessible information on legal remedies and the time limitations for pursuing them.

Medical age examinations unaddressed

Medical examinations, such as bone testing, used in age assessments across France and Europe have been widely criticised for their unreliability, invasiveness and ethnic bias. Despite these substantiated and well-documented concerns, the Court largely ignores the practice of medical testing itself, instead focusing on procedural safeguards and the state’s margin of appreciation in conducting age assessments. This raises the following question: does this judgment, and the broader legal reasoning seen in this judgment, Darboe and Camara v. Italy and F.B. v. Belgium, signal a shift towards less invasive, multidisciplinary, and more rights-compliant age assessment procedures? While the Court scrutinises ineffective procedural safeguards, it does not directly address the fundamental problems inherent in medical age testing. In Darboe and Camara, the Court condemned Italy’s lack of a structured legal framework for age assessments. In contrast, France has a formalised system, but in A.C., the Court finds that the ineffective application thereof resulted in a violation of the applicant’s right to private life. In F.B. v. Belgium, the Court examines medical examinations more directly but ultimately mainly criticises the lack of informed consent rather than the suitability and validity of the tests themselves.

Although these judgments represent progress in scrutinising age assessment procedures, the reliance on the medical examinations itself thus remains largely unchallenged. This is regrettable given the explicit critiques raised by third-party interventions (such as the Défenseur des droits in A.C. v. France and the HRC and CESSMIR in F.B. v. Belgium) which denounce medical age testing as fundamentally flawed. The Court’s hesitation to address these concerns does not align with the approach of other European and international bodies, which have repeatedly urged national governments to move away from an over-reliance on medical age assessments. Moreover, the 2023 EU Pact on Migration introduced standardised protocols across EU member states, emphasising the presumption of minority in favour of individuals claiming to be unaccompanied minors. Regulation (EU) 2024/1348 mandates a multidisciplinary approach, involving psychologists, paediatricians, and social workers before resorting to medical testing, which should only be used as a last resort when initial assessments are inconclusive.[1] However, in A.C., France failed to comply with these European and international guidelines, and the Court barely mentioned this. If the judgment had given more attention to the inherent flaws of medical age testing, it could have sent a stronger message to states that continue to rely on these scientifically unreliable methods. While the Court gradually pushes for improved age assessment practices and greater protections against the improper rebuttal of the presumption of minority, it falls short of explicitly condemning medical age testing as a practice. A stronger denunciation could have further strengthened the shift towards reliable, multidisciplinary, and human rights-based approaches to age assessment.

The pitfalls of vulnerability and the possibilities of intersectionality

The Court stated that the obligation of states to protect the rights embedded in Article 8 is ‘all the more important where, as in the present case, the person concerned is an unaccompanied minor living in a migration context that makes him particularly vulnerable’ (para. 151). This is not the first time the Court has considered whether an individual, given their particular vulnerability, could effectively exercise their rights. While the Court’s sensitivity to multiple and particular (group) vulnerabilities is generally perceived as a positive development, attention has been drawn to potential pitfalls. These include risks of essentialising, stigmatising, stereotyping, and paternalism. Additionally, the concept’s malleable nature allows for varied interpretations, which may perpetuate the status quo or even have the adverse effect of sustaining exclusion and reinforcing systemic inequalities. A key concern is whether the Court’s use of vulnerability ensures human rights protection. Critics point to its failure to engage with intersectionality, a concept developed in black feminist movements and coined by Kimberlé Crenshaw. Intersectionality could address issues like exceptionalism and essentialism by applying to any group or individual, regardless of advantage or disadvantage and (unlike vulnerability) does not require constant definition, making it less susceptible to exclusionary interpretation. In this judgment, the Court acknowledged the applicant’s age and migration status but ignored other intersecting characteristics like gender or race. While ‘vulnerability’ highlighted the lack of effective procedural safeguards for A.C., a particularly vulnerable applicant, ‘intersectionality’ could have uncovered the systemic inequalities embedded in the age assessment procedure. By incorporating intersectionality, the Court could mitigate the limitations of its vulnerability approach.

Dissenting Opinion by Judge Mourou-Vikström

Judge Mourou-Vikström issued a dissenting opinion, arguing that the French authorities acted within their discretion and that their margin of appreciation should be respected. This dissent aligns with broader tensions between state sovereignty in migration management and the protection of fundamental rights. Some of the arguments in this dissenting opinion are rather alarming from a human rights perspective and require critical reflection. The dissent focuses on the fact that the state followed legally established procedures and that remedies were available. However, this line of argument is more relevant to assessing the effectiveness of remedies under Article 13 (in this case in conjunction with Article 8), rather than addressing the substance of the Article 8 violation itself.

By emphasising procedural availability rather than the substantive failure to protect A.C.’s rights, the Judge moves the focus away from the core issue. Further conflating the distinction between Article 8 and Article 13, Judge Mourou-Vikström criticises the majority’s reliance on Darboe and Camara v. Italy, stating that a proper comparative analysis should have led the Court to a different conclusion, as France (unlike Italy) had a legal framework in place. This argument disregards that in the preceding case, the Court found a violation of Article 13, whereas in A.C. v. France, it did not. This demonstrates that the Court did not simply apply Darboe and Camara as a precedent but rather reached a differentiated conclusion based on the specificities of each case. By failing to acknowledge this nuance, the dissent weakens its own argument and misrepresents the Court’s reasoning. Secondly, it overlooks the presumption of minority, the inherent unreliability of the age assessment procedure, and the necessity for comprehensive procedural safeguards in the best interest of the child. By endorsing the authorities’ reliance on medical testing, without requiring them to meaningfully consider alternative indications of age, such as documents and the recommended multidisciplinary approaches, the Judge legitimises a practice that risks undermining the rights of unaccompanied minors.

While the dissenting opinion may stem from a respect to national procedures and the margin of appreciation of the states, the more pressing question is whether those procedures effectively safeguard the rights enshrined in the ECHR. As a human rights body, the Court’s primary role in cases like this is to ensure that legal frameworks do not merely exist in theory but are applied in a manner that provides genuine and effective protection.

Conclusion

The judgment in A.C. v. France reinforces the presumption of minority and the need for effective procedural safeguards in age assessments, finding that France failed to meet its obligations under Article 8. As part of a broader trend following Darboe and Camara v. Italy and preceding F.B. v. Belgium, it contributes to the Court’s growing body of case law regarding age assessment procedures for unaccompanied minors. However, the Court’s failure to address the flaws in medical age testing and its limited engagement with intersectionality reveal a cautious approach to confronting systemic problems in migration governance. This judgment is a step forward, highlighting the importance of transparency, individualised reasoning and clear legal remedies, but leaves some critical issues in the protection of unaccompanied minors’ rights unaddressed.

[1] Caution is necessary: while EU institutions commend the EU Pact’s safeguards for age assessment of unaccompanied minors as measures that will enhance protection and reinforce the presumption of minority, NGOs have pointed out that the Pact still allows Member States to conduct age assessments during the screening process, despite the absence of necessary safeguards and a protective framework for such assessments in the Screening Regulation.