CHAPTER 2

Bone Age: Medico-legal Issues

Serenella Serinelli1, Paolo Arbarello2, Sofia Battisti3, Ernesto Tomei4, and Richard C. Semelka5

1Department Forensic Medicine, Sapienza University of Rome, Rome, Italy

2Department of Anatomical,Histological, Forensic and Orthopaedic Sciences, Sapienza University of Rome; Director of Postgraduate course in Forensic Medicine, Sapienza University of Rome; President of SIMLA (Italian Society of Forensic Medicine), Rome, Italy

3Department of Radiology, University of North Carolina, Chapel Hill, North Carolina, USA; Resident Radiology, Department of Radiology Campus Bio-medico of Rome, Rome, Italy

4Department of Radiology, Oncology and Anatomy Pathology, Sapienza University of Rome, Rome, Italy

5Department of Radiology, UNC School of Medicine, Chapel Hill, North Carolina, USA

2.1 Introduction

Immigration has resulted in an increase in the number of young foreigners who cannot provide proof of identity, in particular their date of birth. According to the latest UNICEF estimations, each year about 51 million births go unregistered in developing countries [1].

Defining an individual's correct age is important in order to ascertain and facilitate good psychologic development, define access to an appropriate educational level, and ensure appropriate care by medical institutions. Moreover, in forensic practice, it is crucial to determine the exact age of a young person in order to correctly manage refugees, asylum seekers, human trafficking victims, and adopted children (Figure 2.1).

Figure 2.1 (a) MRI of the wrist of 15y8m Latin American adopted male, classified as having idiopathic hypostaturism, who did not have proof of identity. The subject demonstrates a marked delayed bone maturation, with skeletal MRI age of 12 years. The radial and ulnar growth plates are still wide open. The radial growth plate is thinner on the medial side, which is an abnormal feature observed in a number of disease states. The radial epiphysis is enveloped by a rim of cartilage, and the styloid process is not yet formed. The carpal bones are formed and ossified, and possess a thin cartilage rim. The phalangeal growth plates are still open, in particular the proximal growth plate of the first metacarpal. (b) MRI of a healthy 15y8m male for comparison.

In medico-legal practice, when a person is accused of a crime, accurate knowledge of chronologic age will determine if he/she should be considered criminally responsible, and if his/her forensic case will be managed by the adult or juvenile criminal justice system. The law in most countries establishes less severe punishments for minors than that for adults, and so many young offenders, nationals or foreigners, claim to be younger than their real age.

In all cases it is important to ensure that local authorities fulfill their obligations towards vulnerable groups, such as individuals less than 18 years or other thresholds [2].

Age can be estimated by measuring or observing features such as somatic, psychologic, dental, or skeletal indicators which are universally considered to be associated with chronologic age. Unfortunately, these features do not always match with each other and they do not always coincide with the real chronologic age; for these reasons age determination is often very difficult. Moreover, age determination is also difficult because most parameters have been developed studying people of particular ethnicities, who live in specific climates, and in environments where they are in good health and nutrition.

There are many variables to account for the discrep­ancies between biologic development and chronologic age [3]. For example, some authors have found signifi­cant differences between estimated and chronologic ages among different ethnic groups [4–7]. Also, low socioeconomic status, diseases, malnutrition, and poor hygiene significantly affect development, causing a slower rate of maturation and resulting in an underestimation of age. Such underestimations do not disadvantage the examined person. On the other hand, an overestimation of age, because of conditions that accelerate development (e.g., precocious puberty, adreno-genital syndrome, and hyperthyroidism), must be avoided as it puts the person at a disadvantage in legal terms [8].

The most frequently used technique to determinate skeletal age is an X-ray of the hand and wrist using Greulich and Pyle (GP) or Tanner and Whitehouse (TW) methods. Although these methods are routinely used [9], medical specialists are increasingly contesting their accuracy in age assessment for forensic purposes [10]. In fact, estimation with a margin of error of 2–3 years is too inaccurate to confirm whether an individual is above 18 years, or other threshold age (Figure 2.2). Moreover, these methods expose the young person to radiation. So, the use of a “bone age” X-ray test can only provide an initial estimation of chronologic age, to which other evidence has to be added, as most research suggests that consulting multiple age indicators provides more accurate results than using a single indicator [11].

Figure 2.2 (a) MRI of the wrist of a 17y1m Romanian adopted male, with no disease and not on any therapy. The subject demonstrates markedly advanced bone maturation, with skeletal MRI age of 18–19 years. The fusion of the radial and ulnar growth plates is almost complete. The carpal bone are formed and ossified. (b) MRI of a healthy 17-year-old male for comparison. There is a thin residual area of low signal intensity on both outer margins of the growth plates of the radius and ulna.

2.2 Medico-legal fields of application

2.2.1 Unaccompanied children in Europe

In Europe, age determination for medico-legal purposes is usually requested for “separated children.” Separated children are defined as individuals “under 18 years of age, outside their country of origin and separated from both parents, or their previous legal, or customary primary caregiver. All separated children are entitled to international protection under a broad range of international and regional instruments” [12]. Separated children may be refugees, asylum seekers [13], migrants, or trafficked children [14], and have the same human rights as everyone else [15].

For many of these separated children an accurate age is not known because they arrive without personal identity documents or birth certificates. In other cases, the age on these identity documents is not correct, and there are many reasons for this discrepancy [16]: different calendars; chaotic circumstances surrounding the time of birth; the child spending time separated from parents; the child being adopted from another family; or the result of other systemic or administrative errors.

In any event, age is important, because it may determine the future of these young individuals. According to the Committee on Migration, Refugees and Population [17]:

[P]rotecting these children should be the starting point. No unaccompanied child should be refused entry at a border or summarily deported; they should immediately be provided with an independent legal guardian and given special assistance commensurate with their age. They should never be held in detention, but should receive appropriate care, preferably foster care. If put up in a centre, they should be accommodated separately from adults. Age assessments should be made sparingly and the young person given the benefit of the doubt in cases of uncertainty. Finding a durable solution for the future should be the ultimate aim from first contact, including family tracing, if the child requests it.

In distinction, a person aged 18 is legally considered an adult, who can be incarcerated in a detention center and is at risk of being removed from the country. Despite this, detention of separated children is still common in several countries, and they are often detained together with adults. Moreover, these children have no legal advice available to them and their chances of protection vary from one country to another.

Another important issue is the need to protect the asylum institution from abuse and to identify those who are in real need of asylum. The high number of age-disputed cases, between asylum seekers who claim to be under 18 and immigration officials who suppose they are older, is demonstrative of a critical level of abuse of the system [18]. To determine the admissibility of a young person to children's services, local authorities must be sure that he/she is really under 18. The Separated Children in Europe Programme's Statement of Good Practice [12], an initiative established by the International Save the Children Alliance and the United Nations High Commissioner for Refugees (UNHCR), listed detailed recommendations for the practice of age assessment, stating that:

Age assessment procedures should only be undertaken as a measure of last resort, not as standard or routine practice, where there are grounds for serious doubt and where other approaches, such as interviews and attempts to gather documentary evidence, have failed to establish the individual's age. If an age assessment is thought to be necessary, informed consent must be gained and the procedure should be multi-disciplinary and undertaken by independent professionals with appropriate expertise and familiarity with the child's ethnic and cultural background. They must balance physical, developmental, psychological, environmental and cultural factors. It is important to note that at the present time, age assessment is not an exact science and a considerable margin...