8.35 Sexually Active Children
In September 2015, this chapter was updated to reflect Working Together to Safeguard Children 2015.
- Assessment and Recognition
- Health Staff
- Education Staff
- Police and Children's Social Care Staff
- Additional Guidance
Research has shown that more than a quarter of young people are sexually active before they reach 16 years. Young people under 16 are the group least likely to use contraception and concern about confidentiality remains the biggest deterrent to seeking advice.
The major task for child protection agencies is to ensure that all children and young people are given appropriate protection from Sexual Abuse whilst ensuring that they are also able to access advice and treatment about contraception, sexual and reproductive health including abortion.
The Sexual Offences Act 2003
The legal age for young people of either gender to consent to have sex is 16 years irrespective of their sexual orientation.
Sexual activity with children under 13 is always illegal as children of this age can never legally give their consent. There should always be a referral made to Children's Social Care or the police in cases involving children aged less than 13 - see Making a Referral Procedure.
Sexual activity with a child aged under 16 is also an offence.
In consenting under age relationships, both parties are committing offences.
Although the age of consent is 16 years, there is no intention to prosecute young people of a similar age involved in mutually agreed consensual sex unless it involves abuse or exploitation.
Consideration should be given in every case of sexual activity involving a child aged 13 to 15 as to whether there should be a discussion with other agencies and whether a referral should be made to Children's Social Care. Where it is consensual it may be less serious than if the child is aged under 13 years but it may, nevertheless have serious consequences for the welfare of the young person. Within this age range the younger the child, the stronger the presumption must be that the sexual activity is a matter of concern and a referral to Children's Social Care should be made. The professional should make the decision based on the considerations set out inAssessment and Recognition below. All cases should be carefully documented including where a decision not to share information or make a referral is made.
Young people still have a right to confidential advice on contraception, condoms, pregnancy and abortion even if they are less than 16 years old. See 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.
The Sexual Offences Act 2003 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:
This exception, in statute, covers not only health professionals, but anyone who acts to protect a child, for example teachers, school nurses, Connexions personal advisers, youth workers, Children's Social Care practitioners and parents.
Sexual activity involving a 16 or 17 year old, even if it does not involve an offence, may still involve harm or the likelihood of harm being suffered. Professionals should still bear in mind the considerations contained in this guidance in assessing whether harm is being suffered, and should share information as appropriate. It should be noted that, under the Sexual Offences Act 2003, it is an offence for a person to have a sexual relationship with a 16 or 17 year old if they hold a position of trust or authority in relation to them. This normally involves a professional who is looking after a child or young person, both of whom reside in or connected with a residential setting. Advice should be sought from the police in individual cases to confirm if an offence has been committed.
See Additional Guidance for additional guidance documents that are available for professionals working with these issues.
Assessment and Recognition
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:
As set out in Working Together 2015 the purpose of assessment is:
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). See also Known Offenders and Others who may Pose a Risk to Children and Children who Harm Other Children.
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 Allegations Against People who Work with, Care for or Volunteer with Children Procedure.
In assessing the nature of any particular behaviour, it is essential to look at the facts of the actual relationship between those involved.
The following factors in the sexual activity indicate a risk to the child:
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. In these circumstances professionals should act in accordance with Section 3 of this manual, Recognition and Referral of Abuse and Neglect.
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 professional guidance (see also Information Sharing and Confidentiality).
All members of staff working for member agencies of the LCSB have a responsibility to ensure all children and young people are appropriately safeguarded. Where staff have concerns that a child or young person is being sexually abused this must be referred to the police and Children's Social Care in accordance with the Making a Referral Procedure.
Cases involving under -13s should always be discussed with a nominated child protection lead in the organisation. There should be a presumption that the case will be reported to Children's Social Care and that a Strategy Discussion will be held - see Strategy Discussions Procedure.
All cases involving under 13s should be fully documented including detailed reasons where a decision is taken not to share information.
Professionals working with young people have different statutory responsibilities both with regard to advice given to young people and the actions they take when aware of under-age sexual activity. These differences are detailed below:
Doctors and other health professionals should 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:
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 co-operation to a child protection Referral but if that is not possible they should be advised that their confidentiality would be breached.
Police and Children's Social Care Staff
Whilst 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 regards to criminal activities.
Children's Social Care staff should inform police of 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.
Recent guidance for Children's Social Care staff indicates that as Working Together is issued under S.7 of the Local Authority Social Services Act 1970 the 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 Handling Allegations of Sexual Offences Against Children).
This is likely to be where the sexual relationship is considered consensual and not abusive and may be most relevant in respect of Looked After children where the social worker is also acting as the 'corporate parent' for the child.
In those 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 be recorded.
The police must investigate all criminal activities even if they may decide that there is no need for prosecution.
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 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 police will not become directly involved in the 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.