19.8 Sexually Active Children

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Please note this policy is under review following the publication of Working together to safeguard children, 2023.

 

Last reviewed in October 2022 

Next review October 2024

Contents

Introduction

19.8.1

Results from the latest NATSAL survey (2012) showed that in Britain, 31% of males and 29% of females aged 16-24 reported having intercourse before the age of 16.

19.8.2

Instances of underage sexual activity may raise difficult issues for professionals 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.

19.8.3

This guidance applies to all sexual relationships. It is designed to assist professionals to understand some key themes, legislation, and guidance in relation to sexual activity involving children and young people, and where there are concerns that this sexual activity may be abusive, what actions need to be taken by professionals.

19.8.4

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

 

19.8.5

Where sexual behaviour is harmful, please refer to Guidance on Children who present with Harmful Sexual Behaviours

You may also find the following policy helpful Children who Harm Other Children

19.8.6

The NSPCC also has information about the stages of typical sexual development and behaviour for different age groups. This includes examples of behaviour that is common and uncommon - sexual development and behaviour in children

19.8.7

The NSPCC also has information about the stages of typical sexual development and behaviour for different age groups. This includes examples of behaviour that is common and uncommon - sexual development and behaviour in children

19.8.8

The below summarises 11–to 25-year olds’ views on what, where and how information is communicated to children and young people about relationships, sex and sexuality in the UK -  Children and young people’s views on learning about sex, sexuality and relationships

Definitions

The Sexual Offences Act 2003

19.8.9

The legal age for young people of all genders to consent to have sex is 16 years irrespective of their sexual orientation.

19.8.10

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.

19.8.11

Sexual activity with a child aged under 16 is also an offence.

19.8.12

In consenting under age relationships, both parties are committing offences.

19.8.13

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.

19.8.14

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.

19.8.15

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 British Medical Association (BMA) Advice and Guidance - Sexual Activity 

19.8.16

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:

  • Protecting a child from pregnancy or sexually transmitted infection;
  • Protecting the physical safety of a child;
  • Promoting a child's emotional well-being by the giving of advice.
19.8.17

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.

19.8.18

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.

19.8.19

See Additional Guidance for additional guidance documents that are available for professionals working with these issues.

19.8.20

Child on child abuse - (also known as peer on peer abuse) the definition of sexual abuse by children is the same as for sexual abuse by adults. Abusive/inappropriate behaviour often characterised by a lack of true consent, the presence of a power imbalance and exploitation. The boundary between what is abusive and what is part of normal childhood or youthful experimentation can be blurred. The ability of professionals to determine whether a child’s sexual behaviour is developmental, inappropriate or abusive will hinge around the related concepts of true consent, power imbalance and exploitation. See Guidance on Children who present with Harmful Sexual Behaviours.  Abusive sexual activity is characterised by behaviour involving coercion, threats, aggression together with secrecy or where one participant relies on an unequal powerbase. Allegations of child on child abuse will be taken as seriously as allegations of abuse perpetrated by an adult.

19.8.21

Sexual grooming is defined as gaining the trust of a child via an emotional connection in order to sexually abuse, exploit or traffic them. It can be committed online or in person, and any communication for this purpose is considered to be grooming, even if no additional offence ever takes place. Any communication with a child for the purpose of sexually abusing them is legally considered to be grooming and is a classified as an offence under the Sexual Offences Act 2003

Section 14 of the Sexual Offences Act 2003 specifies that it is an offence to arrange a meeting, or to facilitate a meeting, with a child under the age of 16 with the intent of sexually abusing the child or with the intent of another person sexually abusing them.

Assessment and Recognition

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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.

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This assessment must be carried out in accordance with:

19.8.24

As set out in Working Together 2018  the purpose of assessment is

  • to gather important information about a child and family
  • to analyse their needs and/or the nature and level of any risk and harm being suffered by the child

  • to decide whether the child is a child in need (section 17) or is suffering or likely to suffer significant harm (section 47)

  • to provide support to address those needs to improve the child’s outcomes and welfare and where necessary to make them safe.

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

19.8.25

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.

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There will 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.

19.8.27

The following factors in the sexual activity indicate a risk to the child:

  • The age of the child. Sexual activity at a young age is a very strong indicator that there are risks to the welfare of the child (whether boy or girl) and, possibly, others;
  • The level of maturity and understanding of the child;
  • What is known about the child's living circumstances or background;
  • Age imbalance, in particular where there is a significant age difference;
  • Overt aggression or power imbalance;
  • Coercion or bribery;
  • Familial child sex offences;
  • Behaviour of the child i.e. withdrawn, anxious;
  • The misuse of substances as a disinhibitor;
  • Whether the child's own behaviour, because of the misuse of substances, places him/her at risk of harm so that he/she is unable to make an informed choice about any activity;
  • Whether any attempts to secure secrecy have been made by the sexual partner, beyond what would be considered usual in a teenage relationship;
  • Whether the child denies, minimises or accepts concerns;
  • Whether the methods used are consistent with grooming; and
  • Whether the sexual partner(s) is known by one of the agencies.
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See also  Criminal and sexual exploitation including serious organised crime and gangs or  Information Communication Technology 

Disabled Children and Young People

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Also refer to guidance Safeguarding children with disabilities 

19.8.30

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 link to 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.

19.8.31

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.

Confidentiality

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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.

19.8.33

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.

19.8.34

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).

Action

19.8.35

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.

19.8.36

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.

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All cases involving under 13s should be fully documented including detailed reasons where a decision is taken not to share information.

19.8.38

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:

Additional guidance for Health Staff

19.8.39

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.

19.8.40

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 the 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.
19.8.41

Additionally they should follow the Fraser Guidelines and establish that:

  • The young person understands the health professional's advice;
  • The health professional cannot persuade the young person to inform her/his parents or allow the doctor to inform the parents that (s)he is seeking contraceptive advice including terminations;
  • The young person is very likely to begin or continue having intercourse with or without contraceptive treatment;
  • Unless (s)he 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.

 

Additional guidance Education Staff

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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.

19.8.43

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.

Additional guidance for Police and Children's Social Care Staff

19.8.44

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.

19.8.45

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.

19.8.46

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).

19.8.47

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.

19.8.48

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.

19.8.49

The police must investigate all criminal activities even if they may decide that there is no need for prosecution.

19.8.50

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.

19.8.51

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.

19.8.52

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.

Additional Guidance for professionals

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This page is correct as printed on Tuesday 16th of July 2024 07:57:58 AM please refer back to this website (http://sussexchildprotection.procedures.org.uk) for updates.