1.4.2 Allegations of Harm Arising from Sexual Activity (including Under Age Sexual Activity)
SCOPE OF THIS CHAPTER
This guidance 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 likelihood of Significant Harm when a child or young person is engaged in sexual activity.
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 involved.
|1.2||In assessing the nature of any particular behaviour, it is essential to look at the facts of the actual 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 indicator, e.g. a 15 year old girl and a 25 year old man). There will also be an imbalance of power if the young person's sexual partner is in a position of trust in relation to them e.g. teacher, youth worker, carer etc. (and thereby committing an offence under the Sexual Offences Act 2003 irrespective of the age of the victim). In the assessment, workers need to be alert for indicators of Child Sexual Exploitation.|
|1.3||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, or have been abused, or subjected to abusive behaviour. Staff members 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 (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:
It is considered good practice for workers to follow the Fraser guidelines when discussing personal or sexual matters with a young person under 16. The Fraser guidelines give guidance on providing advice and treatment to young people under 16 years of age. These hold that sexual health services can be offered without parental consent providing that:
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.
|2.2||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.|
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. There may then be a need for further consultation with Children's Social Care services for the relevant area. 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 procedures must include guidance on how this is to be undertaken within their own organisation).
|2.4||If you have concerns that the young person may be at risk of sexual exploitation, a referral should be made to Children's Social Care Services; where the situation is an emergency, the local police should be contacted immediately. See the Referrals Procedure.|
|2.5||When a referral is received by Children's Social Care Services, consideration will be given to the need for a Strategy Discussion with partner agencies including the Police. This discussion should be informed by the assessment undertaken using this protocol. In the majority of cases, it will not be in the best interests of the young person for criminal or civil proceedings to be instigated. However, the Police and Children's Social Care Services and other agencies may hold vital information that will assist in any clear assessment of risk.|
After the Strategy Discussion there may be one of the following responses:
The outcome of the referral will be formally fed back to the referring agency.During this process agencies must continue to offer services and support to the young person.
|2.7||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.|
3. 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. (Recommendation 12 of Sir Michael Bichard's report).
|3.2||In all cases where the sexually active child is under the age of 13, a referral must be made to Children's Social Care Services and a full assessment undertaken in consultation with partner agencies, including the Police.|
|3.3||When a girl under 13 is found to be pregnant, a referral to Children's Social Care 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.|
4. Young People Between 13 and 16
|4.1||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.|
|4.2||Sexually active young people in this age group will still have to have their needs assessed using this Protocol. Discussion with Children's Social Care Services will depend on the level of risk/need assessed by those working with the young person.|
|4.3||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.|
5. Young People Between 16 and 18
|5.1||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 protection under the Children Act 1989 through the West Yorkshire Consortium Safeguarding Children Partnership Procedures. Consideration still needs to be given to issues of sexual exploitation 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.|
6. Sharing Information with Parents and Carers
|6.1||Decisions to share information with parents and carers will be taken using professional judgement, and consideration of Fraser guidelines. 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.|
|6.2||This guidance is written on the understanding that those working with this group of vulnerable 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
THE SEXUAL OFFENCES ACT 2003
Section 15 of the Sexual Offences Act 2003 has been amended by the Serious Crime Bill (2015) and now 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 just one occasion, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion. In addition the Serious Crime Bill introduced an offence of sexual communication with a child. This makes it an offence for an adult to communicate with a child for the purpose of obtaining sexual gratification, where the communication is sexual or if it is intended to elicit from the child a communication which is sexual. An offence is not committed in either circumstance if (A) reasonably believes the child to be 16 or over.
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 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 Child Sexual Exploitation
The Sexual Offences Act 2003 covers a number of offences to deal with those who abuse and exploit children. The offences protect children up to the age of 18. 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 in relation to child sexual exploitation;
- Sexual communication with a child.
These are not the only charges that may be brought against those who use or abuse children through child sexual exploitation. 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.