5.5 Allegations of Harm Arising from Under Age Sexual Activity

SCOPE OF THIS CHAPTER

This protocol has been designed to assist those working with children and young people to identify where sexual 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 suffering or likely to suffer Significant Harm when a child or young person is engaged in sexual activity.

1. Assessment

1.1 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. This assessment must be carried out in accordance with information and guidance set out in:

• Norfolk Local Safeguarding Children Board Procedures;
• Department of Health Best Practice Guidance for Doctors and other Health Professionals on the provision of Advice and Treatment to Young People Under 16 On Contraception, Sexual, and Reproductive Health. (Appendix 2 (below): DOH Best Practice Guidance for Doctors and Other Health Professionals).

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 include the use of sex for favours e.g. exchanging sex for clothes, CD’s, trainers, alcohol, drugs, cigarettes etc. Young people could also have large amounts of money or other valuables which cannot be accounted for. These may be indicators or warning signs that Child Sexual Exploitation may be present (see Safeguarding Children and Young People from Child Sexual Exploitation: Policy, Procedures and Guidance).

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.

1.3 The Act includes 3 new categories of offences to provide additional protection (Appendix 1 (below): Additional Information).

1.4 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:

• Whether the young person is competent to understand and consent to the sexual activity they are involved in;
• The nature of the relationship between those involved, particularly if there are age or power imbalances as outlined above;
• Whether overt aggression, coercion or bribery was involved including misuse of substances/alcohol as a disinhibitor;
• 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 the sexual partner is known by the agency as having other concerning relationships with similar young people;
• If accompanied by an adult, does that relationship give any cause for concern?
• 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 (below): Additional Information);
• Whether sex has been used to gain favours (e.g. swap sex for cigarettes, clothes, CD’s, trainers, alcohol, drugs etc);
• The young person has a lot of money or other valuable things which cannot be accounted for.

1.5 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:

• 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 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 interest to receive contraceptive/safe sex advice and treatment without parental consent.

2. Process

2.1 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.

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

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.

2.3 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 via the Children’s Advice and Duty Service (CADS). 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, contact the Children’s Advice and Duty Service (CADS); 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.  The Police and Children’s Social Care Services and other agencies may hold vital information that will assist in any clear assessment of risk. Under National Crime Recording Standards (NCRS) the police are duty bound to record an investigation on their system if there has been a disclosure of a serious sexual offence, even if that disclose has come via a professional rather than directly from the child. Although they are duty bound to make a record, this does not mean that the matter will be pursued. Consideration is given to the wishes of the victim and any other relevant circumstances/safeguarding issues.

2.6 After the Strategy Discussion there may be one of the following responses:

• That the child is not In Need. In which case Children’s Social Care 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 local Family Support Process criteria;
• That the child is In Need but there are no concerns about actual or likely Significant Harm. In which case Children’s Social Care Services, in consultation with other agencies, will determine what services they should provide and whether to continue an Assessment;
• That the child is In Need and that there are concerns that the child is suffering or likely to suffer Significant Harm.  In which case Children’s Social Care Services will initiate a Section 47 Enquiry and an Assessment.

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 girls circumstances, and must be included within local guidance.

3. Young People Under the Age of 13

3.1 Under the Sexual Offences Act 2003, children under the age of 13 are unable 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. Due to the child’s inability to consent to sex, by age, the Sexual Offenses Act 2003 denotes these cases as rape. 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, the issue of consent, in relation to young people over the age of 13, may be a consideration.

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 Norfolk Local Safeguarding Children Board Procedures. 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.

6. Sharing Information with Parents and Carers

6.1 Decisions to share information with parents and carers will be taken using professional judgement, consideration of Fraser guidelines and in consultation with the Norfolk Local Safeguarding Children Board Procedures. 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 Protocol 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

DEFINITIONS

Child Sexual Exploitation

The sexual exploitation of children and young people (CSE) under-18 is defined as that which: ‘involves exploitative situations, contexts and relationships where young people (or a third person or persons) receive ‘something’ (e.g. food, accommodation, drugs, alcohol, cigarettes, affection, gifts, money) as a result of them performing, and/or another or others performing on them, sexual activities.

Child sexual exploitation can occur through the use of technology without the child’s immediate recognition; for example being persuaded to post sexual images on the Internet/mobile phones without immediate payment or gain. In all cases, those exploiting the child/young person have power over them by virtue of their age, gender, intellect, physical strength and/or economic or other resources.

Violence, coercion and intimidation are common, involvement in exploitative relationships being characterised in the main by the child or young person’s limited availability of choice resulting from their social/economic and/or emotional vulnerability’.

Sexual communication with a child

Where an adult (aged 18 and over), for the purposes of sexual gratification, intentionally communicates in a sexual way with a child under 16 or encourages that child to respond in a sexual way, then an offence is committed.  An adult who reasonably believes the child is 16 or over does not commit an offence. (Section 15A Sexual Offences Act 2003)

The other offences highlighted are likely to be preceded by this type of behaviour and it is important for professionals to understand that action can be taken at this point – rather than waiting for confirmation of a contact offence.

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 is irrelevant 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 also 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 prostitution;
• Arranging or facilitating child prostitution;
• 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.

BICHARD INQUIRY – Recommendation Number 12

“The government should reaffirm the guidance in ‘Working Together to Safeguard Children’ so that the Police are 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”.

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

Sex Education Forum at the National Children’s Bureau website

Cabinet Office website

Department for Education website

Department of Health website

Appendix 2: DOH Best Practice Guidance for Doctors and Other Health Professionals

Gateway reference – 3382

29 July 2004

This revised guidance replaces HC (86)1/HC (FP) (86)1/LAC (86)3, which is now cancelled.

Doctors and health professionals have a duty of care and a duty of confidentiality to all patients, including under 16s.

This guidance applies to the provision of advice and treatment on contraception, sexual and reproductive health, including abortion.

Research has shown that more than a quarter of young people are sexually active before they reach 16.

Young people under 16 are the group least likely to use contraception and concern about confidentiality remains the biggest deterrent to seeking advice. Publicity about the right to confidentiality is an essential element of an effective contraception and sexual health service.

The Governments ten year Teenage Pregnancy Strategy, launched in 1999, set a goal to halve the under 18 conception rate by 2010. This is a Department for Education and Skills Public Service Agreement jointly held with the Department of Health. Progress towards meeting local under 18 conception rate reduction targets is one of the NHS Performance Indicators for Clinical Commissioning Groups (CCG).

The contribution of CCGs to improving young people’s access to contraceptive and sexual health advice is a key element of all local Teenage Pregnancy Strategies, linked to implementation of the Sexual Health and HIV Strategy, and is performance managed by Strategic Health Authorities.

The Sexual Offences Act 2003 does not affect the duty of care and confidentiality of health professionals to young people under 16.

Action

• CCG commissioners and clinical governance leads should bring this guidance to the attention of all health professionals responsible for the care of young people in any setting.

All services providing contraceptive advice and treatment to young people should:

• Produce an explicit confidentiality policy making clear that under-16s have the same right to confidentiality as adults;
• Prominently advertise services as confidential for young people under 16, within the service and in community settings where young people meet;
• Health professionals who do not offer contraceptive services to under-16s should ensure that arrangements are in place for them to be seen urgently elsewhere.

Directors of Children’s Services should ensure that social care professionals working with young people are aware of this guidance and the Teenage Pregnancy Unit guidance – ‘Enabling young people to access contraception and sexual health information and advice: the legal and policy framework for social workers, foster carers and other social care practitioners’.

Confidentiality

The duty of confidentiality owed to a person under 16, in any setting, is the same as that owed to any other person. This is enshrined in professional code.

All services providing advice and treatment on contraception, sexual and reproductive health should produce an explicit confidentiality policy which reflects this guidance and makes clear that young people under 16 have the same right to confidentiality as adults.

Confidentiality policies should be prominently advertised, in partnership with health, education, youth and community services. Designated staff should be trained to answer questions. Local arrangements should provide for people whose first language is not English or who have communication difficulties.

Employers have a duty to ensure that all staff members maintain confidentiality, including the patients registration and attendance at a service. They should also organise effective training which will help fulfil information governance requirements

An example of an effective training resource is ‘Confidentiality and young people: improving teenagers uptake of sexual and other health advice’. This publication is endorsed by the Royal College of General Practitioners, the British Medical Association, the Royal College of Nursing and the Medical Defence Union.

Deliberate breaches of confidentiality, other than as described below, should be serious disciplinary matters. Anyone discovering such breaches of confidentiality, however minor, including an inadvertent act, should directly inform a senior member of staff (e.g. the Caldicott Guardian) who should take appropriate action.

The duty of confidentiality is not, however, absolute. Where a health professional believes that there is a risk to the health, safety or welfare of a young person or others which is so serious as to outweigh the young person’s right to privacy, they should follow locally agreed child protection protocols, as outlined in Working Together to Safeguard Children. In these circumstances, the over-riding objective must be to safeguard the young person. If considering any disclosure of information to other agencies, including the police, staff should weigh up against the young person’s right to privacy the degree of current or likely harm, what any such disclosure is intended to achieve and what the potential benefits are to the young person’s well-being.

Any disclosure should be justifiable according to the particular facts of the case and legal advice should be sought in cases of doubt. Except in the most exceptional of circumstances, disclosure should only take place after consulting the young person and offering to support a voluntary disclosure.

Duty of Care

Doctors and other health professionals also have a duty of care, regardless of patient age.

A doctor or health professional is able to provide contraception, sexual and reproductive health advice and treatment, without parental knowledge or consent, to a young person aged under 16, provided that:

• She/he understands the advice provided and its implications;
• Her/his physical or mental health would otherwise be likely to suffer and so provision of advice or treatment is in their best interest.

However, even if a decision is taken not to provide treatment, the duty of confidentiality applies, unless there are exceptional circumstances as referred to above.

The personal beliefs of a practitioner should not prejudice the care offered to a young person. Any health professional who is not prepared to offer a confidential contraceptive service to young people must make alternative arrangements for them.

Good Practice in Providing Contraception and Sexual Health to Young People Under 16

It is considered good practice for doctors and other health professionals to consider the following issues when providing advice or treatment to young people under 16 on contraception, 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 by discussing:

• 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 their GP and the case for discussion with a parent or carer. 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, for example another family member or specialist youth worker;
• Any additional counselling or support needs.

Additionally, it is considered good practice for doctors and other health professionals to follow the criteria outlined by Lord Fraser in 1985, in the House of Lords’ ruling in the case of Victoria Gillick v West Norfolk and Wisbech Health Authority, and Department of Health and Social Security. These are commonly known as the Fraser Guidelines:

• The young person understands the health professionals advice;
• The health professional cannot persuade the young person to inform his or her parents or allow the doctor to inform the parents that he or she is seeking contraceptive advice;
• The young person is very likely to begin or continue having intercourse with or without contraceptive treatment;
• Unless he or she receives contraceptive advice or treatment, the young person’s physical or mental health or both are likely to suffer;
• The young person’s best interests require the health professional to give contraceptive advice, treatment or both without parental consent.

Sexual Offences Act 2003

The Sexual Offences Act 2003 does not affect the ability of health professionals and others working with young people to provide confidential advice or treatment on contraception, sexual and reproductive health to young people under 16.

The Act states that, a person is not guilty of aiding, abetting or counselling a sexual offence against a child where they are acting for the purpose of:

• Protecting a child from pregnancy or sexually transmitted infection;
• Protecting the physical safety of a child;
• Promoting child’s emotional well-being by the giving of advice.

In all cases, the person must not be causing or encouraging the commission of an offence or a child’s participation in it. Nor must the person be acting for the purpose of obtaining sexual gratification.

This exception, in statute, covers not only health professionals, but anyone who acts to protect a child, for example teachers, Guidance Adviser. Young Person Adviser, youth workers, social care practitioners and parents.