3.9 Sexually Active Children and Young People: Guidance

Instances of underage sexual activity may raise difficult issues for practitioners and need to be handled with sensitivity. Agencies should ensure that all children and young people are given appropriate protection from sexual abuse. It is the responsibility of all professionals to accurately assess any risk of harm, including significant harm, when a child or young person is engaged in sexual activity. This is likely to require a multi-agency approach.

This guidance has also been formed within the context of government policy and therefore supports the principle that young people should be able to access sexual and reproductive health services, including advice about contraception and abortion.

This guidance applies to all sexual relationships. It is designed to assist staff in identifying where sexual relationships may be abusive and whether a child or young person may need the provision of protection or additional services in relation to sexual activity.

Where there are indications of actual or risk of sexual abuse of a child/young person, be it child sexual exploitation, interfamilial abuse or peer-on-peer abuse, also refer to Buckinghamshire Safeguarding Children Partnership (BSCP) guidance on Child Sexual Exploitation.

The sexual behaviour of young people is conceptualised as laying on a continuum (below) from mutual exploration to behaviours that are seriously harmful to them or to other children or young people.

Where sexual behaviour is harmful, also refer to the Buckinghamshire Safeguarding Children Partnership guidance on Harmful Sexual Behaviour.

It is essential for agencies to clarify the age of the young person, as this will dictate the course of action to be taken.

The Sexual Offences Act 2003 sets out the law in relation to children and young people under the age of 18 years old:

Children aged under 13

A child under 13 is not legally capable of consenting to sexual activity. Any offence under the Sexual Offences Act 2003 involving a child under 13 is very serious and offences committed by an adult may result in a significant prison sentence.

Where a professional is concerned that a child under 13 is involved in penetrative sex, or other intimate sexual activity, there will always be reasonable cause to suspect that a child, whether a girl or boy, is suffering or is likely to suffer significant harm. Professionals should make a referral to Children’s Social Care (see What to do if you have a concern about a child in Buckinghamshire).

Children’s Social Care will convene a strategy meeting which should include the professional making the referral as well as representatives from Children’s Social Care, police and other relevant agencies.

Where both parties involved in sexual activity are under 13, then both children should be considered at risk of significant harm. Thames Valley Police will seek to avoid any prosecution of a child where the children are age appropriate and there is no evidence of coercion, threat, force or other power imbalance.

Children aged 13 - 15

Sexual activity with a child under 16 is also a criminal offence. Where it is consensual it may carry a less serious criminal penalty than under 13 but still attracts a significant prison sentence. It may nevertheless have serious consequences for the welfare of the child.

Consent is always based on choice and is active, not passive. Consent is possible only when there is equal power. Forcing someone to give in is not consent, and going along with something because of wanting to fit in with a group is not consent: ‘If you can’t say “no” comfortably then “yes” has no meaning. If you are unwilling to accept “no” then “yes” has no meaning.’

Consideration should be given in every case of sexual activity involving a child aged 13–15 as to whether there should be a discussion with other agencies and whether a referral should be made to Children’s Social Care. Professionals should use the risk indicators outlined in Section 4 to inform their decision making.

Cases of concern should be discussed with the nominated child protection lead for the agency and subsequently with other agencies if required. Where confidentiality needs to be preserved, the initial consultation can occur without identifying the child directly or indirectly.

Where there is reasonable cause to suspect that significant harm to a child has/might occur, a referral must be made to Children’s Social Care and a strategy discussion held.

Thames Valley Police will seek to avoid any prosecution of a child where the children are age appropriate and there is no evidence of coercion, threat, force or other power imbalance.

Children aged 16 - 17

Although in most cases sexual activity in itself is not an offence when the young person is over the age of 16, young people aged 16 and 17 are still vulnerable to harm through an abusive sexual relationship and are still offered the protection of child protection procedures.

Professionals should still bear in mind the considerations outlined in this guidance, and in particular should be alert to:

• issues of sexual exploitation (see Child Sexual Exploitation guidance)
• offences of rape and any other sexual or physical assault
• sexual activity with a family member
• 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 ‘position of trust’ (see Buckinghamshire Safeguarding Children Partnership procedures for Managing Allegations against Staff and Volunteers)
• young people with disabilities, who compared to children without disabilities are more vulnerable to abuse.

Providing Advice

The Sexual Offences Act 2003 makes provision for young people aged under 16 years to be offered confidential professional advice on contraception, condoms, pregnancy and abortion.

It is good practice to follow the Fraser guidelines when discussing personal or sexual matters with a young person under the age of 16 (Lord Fraser, House of Lords ruling in case of Victoria Gillick v West Norfolk and Wisbech Health Authority & Department of Health and Social Security 1985). 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 contraceptive/protection, e.g. condom advice, is being given
• the young person is likely to begin or to continue to have sexual intercourse without contraception or protection by a barrier method
• the young person’s physical or mental health is likely to suffer unless they receive contraceptive advice or treatment
• it is in the young person’s best interests to receive contraceptive/safe sex advice and treatment without parental consent.

This exception, in statute, covers not only health professionals, but also anyone who acts to protect a child, e.g. teachers, school nurses, Connexions personal advisers, youth offending service officers, youth workers, social workers and parents.

In offering such advice, a person is not guilty of aiding, abetting or counselling a sexual offence against a child where s/he is acting for the purpose of:

• protecting a child from pregnancy or sexually transmitted infection
• protecting the physical safety of a child
• promoting a child’s emotional wellbeing by the giving of advice.

Promoting emotional wellbeing includes exploring the part that sexuality plays in the young person’s sense of identity, the emotional implications of entering into a sexual relationship, and the characteristics of healthy relationships. Where appropriate, the needs and concerns of lesbian, gay, bisexual and transgender young people should be recognised and approached sympathetically. Professionals should consider the particular needs of young people with disabilities. Young people who have been abused may need specialist support, for example where sexual feelings are regarded as shameful or where past relationships have been violent or exploitative.

The duty of confidentiality owed to a person under 16 in any setting is the same as that owed to any other person, but the right to confidentiality is not absolute.

Where there is a serious child protection risk to the health, safety or welfare of a young person or others, this outweighs the young person’s right to privacy.

Research and experience have shown repeatedly that keeping children safe from harm requires professionals and others to share information. Such information sharing must be in accordance with legal requirements and the BSCP Information Sharing Protocol.

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

Consideration should be given to how the young person can access associated assessments and support, and where necessary agencies should signpost or make a referral to appropriate provision.

On each occasion that a young person is seen by an agency, consideration should be given as to whether her/his circumstances have changed or further information has been given which may lead to the need for a referral or re-referral to Children’s Social Care

Where the child is considered to be at risk of significant harm a referral must be made to Children’s Social Care. An assessment will then be made within the child protection framework (see What to do if you have a concern about a child in Buckinghamshire).

In assessing the nature of any particular behaviour, it is essential to look at the facts of the relationship between those involved.

The following considerations must be taken into account when assessing the extent to which the child (or other children) may be suffering, or are at risk of suffering, harm (this list is not exhaustive):

• the age of the child – the younger the child the stronger the presumption must be that sexual activity is a matter of concern
• the level of maturity and understanding of the child and her/his competence to understand and consent to sexual activity
• power imbalances
• where a young person has a disability which could impede choice or hinder their capacity to disclose that they have been abused
• use of overt aggression, coercion or bribery
• use of alcohol and/or drugs to facilitate the activity
• if the young person’s own behaviour, e.g. the use of drugs/alcohol, means s/he is unable to make an informed choice
• any attempts to secure secrecy by the sexual partner beyond what is usual in teenage relationships, e.g. his/her identity being a secret and/or communication being heavily dependent upon text messaging
• if the sexual partner is known by agencies to have concerning relationships with other young people
• if the young person denies or minimises adult concerns
• the presence of a sexually transmitted infection in a very young person
• if the relationship involves behaviours considered to be ‘grooming’ in the context of sexual exploitation (see Child Sexual Exploitation guidance)
• where sex has been used to gain favours, e.g. cigarettes, clothes, trainers, alcohol, drugs
• where the young person has a lot of money or other valuable things which cannot be accounted for
• knowledge about the child’s circumstances/background, including any familial child sex offences
• the child’s behaviour, e.g. withdrawn, anxious
• pregnancy (any girl who is pregnant must be offered specialist assessment, support and guidance).

It is important that all decision-making is undertaken with full professional consultation and never taken by one person alone. All discussions must be recorded, giving reasons for action taken and who was involved.

In cases of concern, where sufficient information is known about the sexual partner(s), the agency should check with other agencies, including the police, to establish what, if any, information is known about them. The police should normally share the required information without beginning a full investigation.

Where a serious crime is suspected, advice should be sought from the police at the earliest opportunity to safeguard the child and minimise the risk of any evidence, such as emails or pictures, being destroyed prior to an investigation.

Sexual abuse and exploitation of a child or young person involves an imbalance of power. Any assessment should seek to identify possible power imbalances within a relationship. These can result from differences in size, age, material wealth and/or psychological, social and physical development. In addition, gender, sexuality, race and levels of sexual knowledge can be used to exert power.

Where a power imbalance results in coercion, manipulation and/or bribery and seduction, these pressures can be applied to a young person by one or two individuals, or through peer pressure (i.e. group bullying). Professionals assessing the nature of a child or young person’s relationship need to be aware of the possibility that either or both of these situations can exist for the child or young person, and they should conduct a holistic assessment of the young person’s needs.

There will be an imbalance of power, and the child or young person will not be deemed able to give consent, if the sexual partner is in a position of trust or is a family member, as defined by the Sexual Offences Act 2003, and/or any pre-existing legislation.

Disabled children and young people are more likely to be abused than non-disabled children, and they are especially at risk when they are living away from home (see BSCP procedure on Children living away from home). They may be particularly vulnerable to coercion due to physical dependency or because a learning disability or a communication difficulty means that it is not easy for them to communicate their wishes to another person. This increases the risk that a sexual relationship may not be consensual.

Professionals should not, however, assume that because a young person has a disability that they are not Fraser competent. Although there is a duty to protect from abuse and exploitation, professionals also need to recognise that disabled children have the right to a full life, including a sexual life.

In assessing whether a relationship presents a risk of significant harm to a disabled child or young person, professionals need to consider the indicators listed in Section 4.6 in the light of these potential additional vulnerabilities.

A child or young person with a disability could be vulnerable to harm from a sexual relationship developed through inclusive activities. This may be in mainstream schools, education colleges, leisure centres and other places where children and young people meet where supervision is at a minimum. Staff need to be alert to the different capabilities of the children and young people they supervise, and assess risks accordingly.

Where professionals in Children's Social Care have concerns that a relationship may present a risk of harm to an older disabled young person, they should begin work with the Adult Social Care services at an early point in order for there to be a smooth transition from protection under the Children Act 1989 to protection for the young person, from their 18^th birthday onwards.

Doctors and other health professionals should consider the following issues when providing advice or treatment to young people on contraception, and sexual and reproductive health.

If a request for contraception is made, doctors and other health professionals should establish rapport and give a young person support and time to make an informed choice. It is important to take account of the capacity of a young person to make informed decisions, even if they are over 16 years old.

If a young person has a learning difficulty or disability, they should be encouraged to speak to an advocate of their choice to help their voice be clearly heard.

When considering a termination of pregnancy, it is particularly important to ensure that the young person has fully understood what is happening.

The following items should be discussed when providing advice or treatment to young people on contraception, and sexual and reproductive health:

• the emotional and physical implications of sexual activity, including the risks of pregnancy and sexually transmitted infections
• whether the relationship is mutually agreed and whether there may be coercion or abuse
• the benefits of informing the young person’s GP and the case for discussion with a parent or carer - although any refusal should be respected
• in the case of abortion, where the young woman is competent to consent but cannot be persuaded to involve a parent, every effort should be made to help them find another adult to provide support, e.g. another family member or specialist young worker
• any additional counselling or support needs.

Young people need to be able to talk to a trusted adult about sex and relationship issues. Although it is desirable that this person is their parent or carer, this is not always possible. The law allows staff to respect young people’s rights to confidentiality when discussing sex and relationship issues, and a disclosure of under-age sex is not of itself a reason to break confidentiality.

Young people should be made aware that confidentiality might be breached if they or another young person is at risk. In these circumstances staff should consult the young person and endeavour to gain their cooperation to a child protection referral. If that is not possible, they should be advised that their confidentiality would be breached.

Staff in schools should consider the need to establish links with colleagues in health to facilitate the delivery of advice/support and guidance on matters of sexual health.

While police and Children’s Social Care staff may provide advice and guidance to a young person involved in under-age sexual activity, both agencies have specific responsibilities with regard to criminal activities.

Children’s Social Care staff should inform police of actual and suspected criminal offences at the earliest possible opportunity in order to consider jointly how to proceed in the best interests of the child. Any decisions not to do so must be made at a senior level and recorded on the child’s file.

Guidance for Children’s Social Care staff indicates that, as Working Together is issued under Section 7 of the Local Authority Social Services Act 1970, a decision not to inform the police where an offence has been committed against a child should only be made where ‘exceptional circumstances justify a variation’ (LASSL (2004) 21). This is likely to be where the sexual relationship is considered consensual and not abusive, and may be most relevant in respect of children in care where children’s social care is also acting as the ‘corporate parent’ for the child.

In these circumstances it may be more important that the child receives appropriate advice regarding sexual health and contraception. This may be difficult if the young person is concerned that the police will be involved. Such a decision should always be made following consultation with line managers and should be recorded.

The police will proportionately investigate all criminal activities and make appropriate decisions in relation to the need for prosecution or not. Such decisions should always be made following consultation with line managers and should be recorded.

The priority for the police is the identification and investigation of under-age sexual activity where the relationship is abusive, either by being intra-familial in nature, or where there is a significant age/power gap between the parties involved.

Where young people of a similar age are involved in consensual sexual activity, or in other sensitive cases, the police role may be confined to the undertaking of information checks only. In such cases the police will not become directly involved in an investigation unless enquiries by the police or other agencies indicate the relationship is in fact abusive.

Both police and Children’s Social Care staff together may decide that there is no need for prosecution, but young people should be advised that their confidentiality cannot be maintained if staff from these agencies are involved.

Decisions to share information with parents and carers should be taken using professional judgement, consideration of the Fraser guidelines and in consultation with the child protection procedures. Decisions should 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.

Those working directly with young people should give consideration to the role they may have in facilitating information sharing with parents/carers, in a planned way, in partnership with the young person.