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4.4 Working with Young People Engaged in Sexual Activity

Contents

  1. Introduction
  2. Assessment
  3. Process
  4. Young People under the Age of 13
  5. Young People between 13 and 16
  6. Young People between 16 and 18
  7. Sharing Information with Parents and Carers

    Appendix 1: Additional Information

    Appendix 2: Additional References


1. Introduction

This procedure has been devised with the understanding that most young people under the age of 18 will have an interest in sex and sexual relationships.

It is designed to assist those working with children and young people to identify where these relationships may be abusive, and the children and young people may need the provision of protection or additional services.

It is based on the core principle that the welfare of the child or young person is paramount, and emphasises the need for professionals to work together in accurately assessing the risk of Significant Harm when a child or young person is engaged in sexual activity.

All agencies, which have contact with children and young people, should use this protocol to develop and implement local guidance for their own staff.


2. Assessment

All young people, regardless of gender or sexual orientation, who are involved in sexual activity, must have their needs for health, education, support and/or protection assessed by the agency involved.

This assessment must be carried out in accordance with:

In assessing any particular behaviour, it is essential to look at the nature of the relationship between those involved. Power imbalances are very important and can occur through differences in size, age and development and where gender, sexuality, race and levels of sexual knowledge are used to exert such power. (Of these, age may be a key factor e.g. a 15 year old girl with a 25 year old man).

There may also be an imbalance of power if the young person's sexual partner occupies a position of trust e.g. teacher, youth worker, carer etc. (In these circumstances, see also Managing Allegations Against Staff, Volunteers, Foster and Adoptive Carers who Work with Children Procedure.

If the young person has a learning disability, mental disorder or other communication difficulty, they may not be able to communicate easily to someone that they are being, or have been, abused or subjected to abusive behaviour. Staff need to be aware that the Sexual Offences Act 2003 recognises the rights of people with a mental disorder to a full life, including a sexual life. However, there is a duty to protect them from abuse and exploitation. The Act includes 3 new categories of offences to provide additional protection (see Appendix 1: Additional Information).

In order to determine whether the relationship presents a risk to the young person, the following factors should be considered. This list is not exhaustive and other factors may be needed to be taken into account:

  • The age of the young person - sexual activity at a young age is a very strong indicator of risks to the welfare of the young person (boy or girl) and, possibly, others;
  • Whether the young person is competent to understand and consent to the sexual activity in which he or she is involved;
  • The nature of the relationship between those involved, particularly if there are age or power imbalances;
  • Whether overt aggression, coercion or bribery was involved including misuse of substances/alcohol as an inhibitor;
  • Whether the young person's own behaviour, for example, through misuse of substances, including alcohol, places them in a position where they are unable to make an informed choice about the activity;
  • Any attempts to secure secrecy by the sexual partner beyond what would be considered usual in a teenage relationship;
  • Whether there have been concerns about the sexual partner, including his/her relationships with other young people;
  • Whether the young person denies, minimises or accepts concerns;
  • Whether methods used to secure compliance and/or secrecy by the sexual partner are consistent with behaviours considered to be 'grooming' (Appendix 1: Additional Information);
  • Whether sex has been used to gain favours e.g. exchanging sex for cigarettes, clothes, alcohol, drugs, mobile phones, etc;
  • Whether the young person has unreasonable amounts of money or other valuables that cannot be accounted for.

It is considered good practice for workers to follow the Fraser Guidelines when discussing personal or sexual matters with a young person under 16. These hold that sexual health services can be offered without parental consent providing that:

  • The young person understands the advice that is being given;
  • The young person cannot be persuaded to inform or seek support from their parents and will not allow the worker to inform the parents that contraception/protection, for example, condom advice, is being given;
  • The young person is likely to begin or continue to have sex without the provision of contraception or protection by a barrier method such as a condom;
  • It is in the young person's best interests to receive contraceptive/safe sex advice and treatment without parental consent and the young person's physical or mental health is likely to suffer unless he or she receives contraceptive advice or treatment.


3. Process

In working with young people, it must always be made clear to them that absolute confidentiality cannot be guaranteed, and that there will be some circumstances where the needs of the young person can only be safeguarded by sharing information with others.  See Information Sharing and Confidentiality Procedure.

This discussion with the young person may prove useful as a means of emphasising the gravity of some situations.

On each occasion that a young person is seen by an agency, consideration should be given as to whether their circumstances have changed or further information has been given which may lead to the need for referral or re-referral to Children's Specialist Services - if so, please go to the Contacts and Referrals Procedure.

In some cases urgent action may need to be taken to safeguard the welfare of a young person.  However, in most circumstances there will need to be a process of information sharing and discussion in order to formulate an appropriate plan.  There should be time for reasoned consideration to define the best way forward. 

Anyone concerned about the sexual activity of a young person should initially discuss this with the person in their agency responsible for child protection and possibly the Designated and Named Doctor and Nurse.  There may then be a need for further consultation with, Children's Specialist Services IFD. All discussions should be recorded, giving reasons for action taken and who was spoken to.

It is important that all decision-making is undertaken with full professional consultation, never by one person alone (agency's own procedures must include guidance on how this is to be undertaken within their organisation).

If there are concerns that the young person may be at risk of Sexual Exploitation, for example through prostitution, please refer to Safeguarding Children and Young People Abused Through Sexual Exploitation Procedure.

When a referral is received by Children's Social Care in relation to a child engaged in sexual activity, a check will be made as to whether the child/young person is the subject of a Child Protection Plan, followed by a Strategy Discussion with partner agencies including the Police. This discussion should be informed by the assessment undertaken using this procedure. In many cases, it will not be in the best interests of the young person for criminal or civil proceedings to be instigated.  However, Police and Children's Services and other agencies may hold vital information that will assist in any clear assessment of risk.

Following any referral to Children's Specialist Services and after a Strategy Discussion with the Police and/or any other agencies there may be one of these responses:

  • That the child is not In Need. In which case Children's Specialist Services will take no further action other than, where appropriate, to provide information and advice or sign posting to another agency in accordance with the Common Assessment Framework and Team Around the Child Model.  Where Team Around the Child is being advised, the appropriate Area Team leader will be informed;
  • That the child is In Need but there are no concerns about actual or likely Significant Harm. In which case Children's Specialist Services, in consultation with other agencies, will determine what services they should provide and whether to initiate a Social Work Assessment of Needs and Strengths;
  • That the child is In Need and that there are concerns that the child is suffering or is at risk of suffering Significant Harm.  In which case Children's Specialist Services will initiate a Section 47 Enquiry and a Social Work Assessment of Needs and Strengths.

The outcome of the referral will be formally fed back to the referring agency.

During this process agencies must continue to offer the service and support to the young person.

Any girl, either under or over the age of 13, who is pregnant, must be offered specialist support and guidance by the relevant services.  These services will also be a part of the assessment of the girl's circumstances, and must be included within local guidance.


4. Young People under the Age of 13

Under the Sexual Offences Act 2003, children under the age of 13 are considered of insufficient age to give consent to sexual activity.

The police must be notified as soon as possible when a criminal offence has been committed or is suspected of having been committed against a child unless there are exceptional reasons not to do so. (NB This was Recommendation 12 of Sir Michael Bichard's report

In all cases where the sexually active young person is under the age of 13, a full assessment must be undertaken by the agency in direct contact with the child. Each case must be assessed individually and consideration given to making a child protection referral to Children's Specialist Services via IFD. In order for this to be meaningful, the young person will need to be identified, as will their sexual partner if details are known. 

A decision not to refer can only be made following a case discussion with the designated lead for child protection within the professional's employing authority.  When a referral is not made, the professional and agency concerned is fully accountable for the decision and a good standard of record keeping must be made, including the reasons for not making a referral.

When a girl under 13 is found to be pregnant, a referral to Children's Specialist Services must be made and they will hold a Strategy Discussion with the police and/or other agencies.  At this stage a multi agency support package should be formulated.


5. Young People between 13 and 16

The Sexual Offences Act 2003 reinforces that, whilst mutually agreed, non-exploitative sexual activity between teenagers does take place and that often no harm comes from it, the age of consent should still remain at 16.  This acknowledges that this group of young people is still vulnerable, even when they do not view themselves as such.

Sexually active young people in this age group will still have to have their needs assessed using this procedure.  Discussion with Children's Specialist Services will depend on the level of risk/need assessed by those working with the young person. 

This difference in procedure reflects the position that, whilst sexual activity under 16 remains illegal, young people under the age of 13 are not capable to give consent to such sexual activity.


6. Young People between 16 and 18

Although sexual activity in itself is no longer an offence over the age of 16, young people under the age of 18 are still offered the protection of Child Protection Procedures under the Children Act 1989.  Consideration still needs to be given to issues of sexual exploitation through prostitution and abuse of power in circumstances outlined above. Young people, of course, can still be subject to offences of rape and assault and the circumstances of an incident may need to be explored with a young person.  Young people over the age of 16 and under the age of 18 are not deemed able to give consent if the sexual activity is with an adult in a position of trust or a family member as defined by the Sexual Offences Act 2003.


7. Sharing Information with Parents and Carers

Decisions to share information with parents and carers will be taken using professional judgement, consideration of Fraser Guidelines and in accordance with the Information Sharing and Confidentiality Procedure.  Decisions will be based on the child's age, maturity and ability to appreciate what is involved in terms of the implications and risks to themselves.  This should be coupled with the parents' and carers' ability and commitment to protect the young person.  Given the responsibility that parents have for the conduct and welfare of their children, professionals should encourage the young person, at all points, to share information with their parents and carers wherever safe to do so.

This procedure is written on the understanding that those working with this vulnerable group of young people will naturally want to do as much as they can to provide a safe, accessible and confidential service whilst remaining aware of their duty of care to safeguard them and promote their well being.


Appendix 1: Additional Information

Definitions

Sexual Grooming

Section 15 of the Sexual Offences Act 2003 makes it an offence for a person (A) aged 18 or over to meet intentionally, or to travel with the intention of meeting a child under 16 in any part of the world, if he has met or communicated with that child on at least two earlier occasions, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion. An offence is not committed if (A) reasonably believes the child to be 16 or over.

The section is intended to cover situations where an adult (A) establishes contact with a child through for example, meetings, conversations or communications on the internet and gains the child's trust and confidence so that he can arrange to meet the child for the purpose of committing a "relevant offence" against the child.

The course of conduct prior to the meeting that triggers the offence may have an explicitly sexual content, such as (A) entering into conversations with the child about sexual acts he wants to engage him/her in when they meet, or sending images of adult pornography. However, the prior meetings or communication need not have an explicitly sexual content and could for example simply be (A) giving swimming lessons or meeting him/her incidentally through a friend.

The offence will be complete either when, following the earlier communications, (A) meets the child or travels to meet the child with the intent to commit a relevant offence against the child. The intended offence does not have to take place.

The evidence of (A's) intent to commit an offence may be drawn from the communications between (A) and the child before the meeting or may be drawn from other circumstances, for example if (A) travels to the meeting with ropes, condoms and lubricants.

Subsection (2)(a) provides that (A's) previous meetings or communications with the child can have taken place in or across any part of the world. This would cover for example (A) emailing the child from abroad (A) and the child speaking on the telephone abroad, or (A) meeting the child abroad.  The travel to the meeting itself must at least partly take place in England or Wales or Northern Ireland.

The Sexual Offences Act 2003

The Age of Consent

The legal age for young people to consent to have sex is still 16, whether they are straight, gay or bisexual. The aim of the law is to protect the rights and interests of young people, and make it easier to prosecute people who pressure or force others into having sex they don't want.

For the purposes of the under 13 offences, whether the child consented to the relevant risk is irrelevant.  A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.

Protecting People with a mental disorder

The Act has created three new categories of offences to provide additional protection to those with a mental disorder.

The Act covers offences committed against those who, because of a profound mental disorder, lack the capacity to consent to sexual activity

The Act covers offences where a person with a mental disorder is induced, threatened or deceived into sexual activity

The Act makes it an offence for people providing care, assistance or services to someone in connection with a mental disorder to engage in sexual activity with that person

Protecting Children from Sexual Exploitation

The Sexual Offences Act 2003 introduced a number of new offences to deal with those who abuse and exploit children. The offences protect children up to the age of 18 and can attract tough penalties. They include:

  • Paying for the sexual services of a child
  • Causing or inciting child sexual exploitation
  • Arranging or facilitating child sexual exploitation
  • Controlling a child prostitute

These are not the only charges that may be brought against those who use or abuse children through prostitution. Abusers and coercers often physically, sexually and emotionally abuse these children, and may effectively imprison them. If a child is a victim of serious offences, the most serious charge that the evidence will support should always be used.

Children and Families: Safer From Sexual Crime - (Sexual Offences Act 2003)

Although the age of consent remains at 16, the law is not intended to prosecute mutually agreed teenage sexual activity between two young people of a similar age, unless it involves abuse or exploitation.  Young people, including those under 13, will continue to have the right to confidential advice on contraception, condoms, pregnancy and abortion.


Appendix 2: Additional References

Enabling young people to access contraceptive and sexual health information and advice:  Legal and Policy Framework for Social Workers, Residential Social Workers, Foster Carers and other Social Care Practitioners

(Department for Education and Skills Teenage Pregnancy Unit 2004)

Best practice guidance for doctors and health professionals on the provision of advice and treatment to young people under 16 on contraception, sexual and reproductive health

(Department of Health July 2004)

What to do if you're worried a child is being abused

(Joint publication from the Department of Health, Home Office, Office of the Deputy Prime Minister, Lord Chancellor, Department of Education and Skills)

Handling Allegations of sexual offences against children

(Local Authority Social Services Letter LASSL (2004) 21 August 2004)

Guidance on offences against children

(Home Office Circular 16/2005)

Further Information Available From

Home Office website

Brook website

Cabinet Office website

Department for Education website

Department of Health website

End