5.11.2 Working with Sexually Active Young People Under the Age of 18 |
RELATED CHAPTER
Useful Guidance for Schools - Sex and Relationships Education
AMENDMENT
This chapter was amended in July 2022 to include information on sexual harassment and violence following the Review of Sexual Abuse in Schools and Colleges (Ofsted, June 2021) and Keeping Children Safe in Education (September 2021).
Contents
- Introduction and Background
- Process for All Children and Young People Under the Age of 18
- Assessment of Risk / Need
- Process where a Child / Young Person is Assessed to be at Risk of Significant Harm
- Process for Child / Young Person Under the Age of 13
- Process for Young People Aged Between 13 - 16 years
- Process for Young People Aged Between 16 - 18 years
- Sharing Information with Parents and Carers
Appendix A: Flow Chart for Professionals Working with Sexually Active Under 18's
Appendix B: Legislation
Appendix C: Risk / Needs Assessment Template
Appendix D: Sexual Health Network Sexual Exploitation Risk Indictor Tool for Practitioners within Sexual Health Services Only
Appendix E: Guidance Document for use with Appendix D
1. Introduction and Background
| 1.1 | The recommendations from the Bichard Inquiry required a co-ordinated and child centred approach from agencies working in childcare fields including sexual health and criminal justice. |
| 1.2 | Recommendations 12[1] and 13 specifically require LSCP's to provide clear guidance for handling allegations of sexual offences against children to support workers in making decisions about when to notify the Police and Social Care agencies. |
| 1.3 | This protocol has been devised with the understanding that most children and young people under the age of 18 will have a healthy interest in sex and sexual relationships. It is designed to assist those working with children and young people to identify where those relationships may be abusive and the young people may need the provision of protection and additional services. The primary concern of anyone working with sexually active children and young people under the age of 18 years must be to safeguard and promote their welfare. It requires a collaborative approach between child welfare and criminal justice agencies which ensures that no one agency will embark upon a course of action that has implications for others without appropriate consultation. Where there are child protection concerns, these will over-ride the requirement for agency confidentiality and allow information to be shared across agencies - see Data Protection, Information Sharing and Confidentiality Policy. |
| 1.4 | This guidance is also written on the understanding that those working with this vulnerable group of children and 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. |
| 1.5 | Children and young people, regardless of gender, and sexual orientation who are believed to be engaged in, or planning to be engage in, sexual activity should always have their needs for health education, support and/or protection assessed by the agency involved. |
| 1.6 | The Sexual Offences Act 2003 aims to protect the safety and rights of children and young people and to make it easier to prosecute people who pressure or force others into having sex they do not consent to. Although the age of consent remains at 16, it is not intended that the law should be used to prosecute mutually agreed teenage sexual activity between two young people of similar age, except where it involves abuse or exploitation. The Act still allows young people under 16 the right to confidential advice on contraception, condoms, pregnancy and abortion. |
| 1.7 | This guidance acknowledges that all cases need to be considered on an individual basis due to the complex balancing of issues such as chronological and developmental age, power and knowledge; in doing so this guidance should be used in conjunction with the procedures in Section 3 of this manual (Managing Individual Cases). |
[1] 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 Bichard Report).
Consent
Consent is a vital part of engaging with young people who may be sexually active. Young people who are deemed to be 'Fraser competent' by a health professional can give consent to treatment. But young people who are 'Fraser Competent' may still be subject to coercion in sexual behaviour. The Children's Commissioner in Sex Without Consent, I Suppose That is Rape (November 2013 as part of the Inquiry into the Sexual Exploitation in Gangs and Groups) highlighted the issue about young people's lack of understanding about the issues involved in consent following on from a research project examining young people's views on consent. The research highlighted muddled thinking in young people about their ability to say 'no', influenced by attitudes and beliefs about the sexual experience of other young people, the way young people dressed and talked, the influence of alcohol and gender differences. All young people studied understood consent theoretically but real-life context made a significant difference to what non-consensual sex looked like. Giving of consent was relatively straightforward, but getting consent was not so clear cut. Sexting and pornography were identified as big influences in young people's lives and victim blaming was prevalent. The report highlighted that when making decisions about sex, young people have to negotiate a complex web of influences from media representations, pornography, peer pressure to have sex, and the theory about consent is not clearly understood when young people find themselves faced with the reality of making the choice. It makes it even more important that the discussion about sexual activity explore these attitudes and influences in a way that enables the young person to be open about their experiences.
Levels of Sexual Harassment and Abuse in Education Settings
The Review of Sexual Abuse in Schools and Colleges (Ofsted, June 2021) identified substantial levels of sexual harassment and online sexual abuse for both girls (90%) and boys (nearly 50%). Nevertheless, that in a number of schools this went unreported as a result of the school's 'culture'. A part of this appeared to be that children felt they would not be listened to or be believed; they would be ostracised by peers, and because once it was discussed, (the children) feared the process would be out of their control. Also, that staff were generally not aware and did not countenance that this could happen at their school.
Keeping Children Safe in Education highlights that, 'Sexual violence and sexual harassment can occur between two children of any age and sex, from primary through to secondary stage and into colleges. It can occur through a group of children sexually assaulting or sexually harassing a single child or group of children. Sexual violence and sexual harassment exist on a continuum and may overlap; they can occur online and face to face (both physically and verbally) and are never acceptable. It notes that all staff working with children are advised to maintain an attitude of 'it could happen here' and to understand that, as a result of pupil's reluctance to refer themselves, they should act on third-party information.
2. Process for All Children and Young People Under the Age of 18
| 2.1 | In working with children and young people, it must always be made clear to them at the earliest appropriate point, 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 child/young person may prove useful as a means of emphasising the gravity of some situations. For additional guidance, see Data Protection, Information Sharing and Confidentiality Policy. |
| 2.2 | It is important that workers are aware that children and young people under the age of 18 may be seeking help and advice from services where they may be subject to sexual exploitation, and /or may have been trafficked. In such cases young people are always likely to suffer Significant Harm and appropriate action in line with Children and Young People Abused Through Sexual Exploitation Procedure and Children who are Victims of Modern Slavery, Trafficking and Exploitation Procedure must be taken. |
| 2.3 | On each occasion that a child/young person is seen, an assessment of risk / need must be done and consideration given as to whether their circumstances have changed or further information is given which will inform the appropriate action required. (Refer to Section 3, Assessment of Risk / Need). |
| 2.4 | Anyone concerned about the sexual activity of a child/young person must discuss this concern with their line manager or nominated/designated person in their organisation with responsibility for Safeguarding/Child Protection. |
| 2.5 | All discussions should be recorded. It is important that all decision-making is undertaken following consultation with managers and, where appropriate, external agencies and never by one person alone. |
3. Assessment of Risk / Need
See also:
Appendix A: Flow Chart for Professionals Working with Sexually Active Under 18's.
Appendix C: Risk / Needs Assessment Template.
Appendix E: Guidance Document for use with Appendix D.
| 3.1 | 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 highly significant 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. There may also be an imbalance of power if the child/young person's sexual partner is in a position of trust or authority in relation to them, indeed this is legislated for. It is also important to recognise that cultural and language differences may have an impact on the information that a young person is willing or able to provide. |
| 3.2 | If the child/young person has learning/physical disabilities or other communication difficulty and cannot easily communicate to someone that they have been abused, they may be vulnerable to exploitation. People with learning disabilities have the same rights and responsibilities as everyone else, but may need help with various parts of their lives. Some people will need help to understand their rights and responsibilities regarding social and personal relationships. Capacity to consent can only be assessed on an individual basis. For further guidance see Children with Disabilities and Complex Needs Procedure. Where there are doubts or concerns for young people aged 16 and over a Mental Capacity assessment may be required under the Mental Capacity Act 2005*. |
| 3.3 | In order to determine whether the relationship presents a risk to the child/young person, the following factors should be considered. See also Appendix A: Flow Chart for Professionals Working with Sexually Active Under 18's. If you are in doubt if the relationship presents a risk to a young person contact the Safeguarding Unit for help and advice.
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| 3.4 | If at this stage, you have concerns that the child/young person may be at risk of sexual exploitation it must be discussed with the Safeguarding Unit or Children's Social Care (refer to Local Contact Details), with reference to the Children and Young People Abused Through Sexual Exploitation Procedure in order to decide the most appropriate action to take. All discussions held and actions taken must be recorded in the young person's record. |
| 3.5 | If the child/young person is not thought to be at risk of sexual exploitation, consideration should be given to assessing their health education needs in relation to their ongoing sexual health needs and relationships. It is considered good practice for workers to follow the Fraser Guidelines when discussing personal or sexual matters with a person under 16 years. (Refer to Appendix B: Legislation). |
| 3.6 | When a sexually active child / young person is not referred to the police or other services, on any occasion they are seen, consideration should be given as to whether the circumstances have changed or further information is available which may lead to an increase in concerns, and require a referral. |
The Greater Manchester Sexual Health Network has developed a separate Sexual Exploitation Risk Indicator Tool which can be used for vulnerable adults as well as for young people. It should only be used by practitioners delivering Sexual Health Services who have received training via the Greater Manchester Sexual Health Network and by following the accompanying guidance. Refer to Appendix D: Sexual Exploitation Risk Indicator Tool for Practitioners within Sexual Health Services Only and Appendix E: Guidance Document for use with Appendix D.
* (The MCA applies in England and Wales. It affects anyone whose mental capacity to make decisions is affected by (what the MCA refers to as) “an impairment of, or a disturbance in the functioning of the mind or brain.” In some cases, a person's capacity may be permanently affected, perhaps because they have a form of dementia, a learning disability or have suffered a brain injury. But in others, the person's capacity might be affected only for a temporary period, perhaps because they are confused or unconscious).
4. Process where a Child / Young Person is Assessed to be at Risk of Significant Harm
| 4.1 | In some exceptional cases immediate urgent action may need to be taken to safeguard the welfare of a young person, (see 4.2). 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. |
| 4.2 | Where there is reasonable cause to suspect that Significant Harm to a child has occurred or might occur, the case must be reported to Children's Social Care - see Making Referrals to Children's Social Care Procedure. A record of all discussions must be made, regardless of what action is taken, and should include an explanation as to the reasons for the decision, who is responsible for carrying out any actions agreed during the discussion and who was spoken to. |
| 4.3 | It is important that all decision-making is undertaken with full worker consultation, never by one person alone. Any referral to Children's Social Care must always be followed up in writing within 48 hours using the multi-agency referral form. |
| 4.4 | Where Children's Social Care receives such a referral, a Strategy Discussion with partner agencies including the police will be held (see Strategy Discussion Procedure). This discussion should use information provided by the referrer who has undertaken the initial enquiries, which would include the individual agency risk assessment using this guidance and, in the majority of cases, may be largely for the purposes of consultation and information sharing. Wherever possible, the person referring the young person should be included in the Strategy Discussion to ensure that the assessment information is included. |
| 4.5 | Following a referral to Children's Social Care and after the Strategy Discussion there may be the following responses:
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| 4.6 | During this process, appropriate support should be offered and agencies should continue to offer the services provided. |
| 4.7 | Any girl, under the age of 18, 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. |
| 4.8 | If, following this protocol, there is information that a young person has sexually abused others, or is displaying sexually harmful behaviour, then the Harmful Sexual Behaviours Presented by Children and Young People Procedure should be followed. |
5. Process for Child / Young Person Under the Age of 13
| 5.1 | 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 should be taken to indicate a risk of Significant Harm to the child. |
| 5.2 | Cases involving children/young people under 13s should always be discussed with a nominated child protection lead in the organisation. Under the Sexual Offences Act 2003, penetrative sex with a child under 13 is classed as rape. Where the allegation concerns penetrative sex, or other intimate sexual activity occurs, there would always be reasonable cause to suspect that a child, whether girl or boy, is suffering or is likely to suffer Significant Harm. In all cases where a child/young person under 13 is judged to be sexually active, all agencies have a primary responsibility to safeguard the child. All agencies:
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| 5.3 | All cases, where a young person is under 13, and a criminal sexual offence has been or is suspected to have been committed must be referred to Children's Social Care and/or the Police so that a Strategy Discussion can be held - see paragraph 4.4. |
| 5.4 | Where a decision is taken not to refer a child under 13 to Children's Social Care and/or the Police, all agencies must have completed the risk assessment (refer to Appendix C: Risk / Needs Assessment Template or Appendix D: Sexual Exploitation Risk Indicator Tool for Practitioners within Sexual Health Services Only if they are a practitioner delivering Sexual Health Services), have discussed and agreed this decision with the agency designated child protection lead, and recorded the reasons for this decision. The line manager must sign this. It is important to remember that your information about the child is likely to be incomplete, particularly if it is solely dependent upon what the child has told you, and you may be missing significant information about the experience of the child if you decide not to consult with other agencies. |
6. Process for Young People Aged Between 13 - 16 years
| 6.1 | 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 of it, the age of consent should still remain at 16. This acknowledges that this group of young people can still be vulnerable, even when they do not view themselves as such. |
| 6.2 | Sexually active young people in this age group will still have to have their needs assessed using this guidance. Discussion with Children's Social Care will depend on the level of risk/need assessed by those working with the young person. In reaching a decision it is important to recognise that significant information may be held by other agencies that would impact on the degree of risk/need a young person may be considered to be at. |
| 6.3 | This difference in procedure reflects the position that, whilst sexual activity under 16 remains illegal, only children under the age of 13 are deemed unable to consent to such sexual activity. For children between 13 and 16 years the child's own views on their best interests are also a factor, which should be given a weight dependent on the maturity and understanding. In laying down this principle in May 2005, the Court of Appeal said, 'in the case of an articulate teenager there is no place for professional paternalism'. |
| 6.4 | In all cases where a young person between 13 - 16 years is judged to be sexually active, all agencies:
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7. Process for Young People Aged Between 16 - 18 years
| 7.1 | Sexual activity involving a 16 or 17 year old, though unlikely to involve an offence, may still involve harm or the risk of harm and young people up to the age of 18 are still offered the protection of child protection procedures through the Children Act 1989. Consideration still needs to be given to issues of sexual exploitation in circumstances outlined above in assessing risk, with information being shared as appropriate. 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. 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. |
| 7.2 | Procedures as for 13 - 16 year olds should be implemented, recognising that the risk assessment will take into account the issues of consent. |
| 7.3 | Where there are concerns or doubts about individuals vulnerabilities or capacity to consent, a Mental Capacity Assessment should be undertaken to determine their capacity to consent. |
8. Sharing Information with Parents and Carers
| 8.1 | Decisions to share information with parents will be taken using worker judgement, consideration of Gillick/Fraser guidelines (refer to Appendix B: Legislation), and in conjunction with the principles set out in the Data Protection, Information Sharing and Confidentiality Guidance. Decisions will be based on the child's age, maturity and ability to appreciate what is involved in terms of the implications and risks themselves. This should be coupled with the parents' ability and commitment to protect the young person. Given the responsibility that parents have for the conduct and welfare of their children, workers should encourage the young person, at all points, to share information with their parents where ever safe to do so. |
Appendix A: Flow Chart for Professionals Working with Sexually Active Under 18's
Click here to view Appendix A: Flow Chart for Professionals Working with Sexually Active Under 18's.
Appendix B: Legislation
Sexual Offences Act 2003
The aim of the legislation is to provide an effective legal framework governing sexual offences, taking into account technological advances and trends in offending. The following list details offences against children as informed by the Sexual Offences Act 2003:
- Rape;
- Assault by Penetration;
- Sexual Assault;
- Causing a person to engage in sexual activity without consent;
- Rape of a child under 13;
- Assault of a child under 13 by penetration;
- Sexual assault of a child under 13;
- Causing or inciting a child under 13 to engage in sexual activity;
- Sexual activity with a child;
- Causing or inciting a child to engage in sexual activity;
- Engaging in sexual activity in the presence of a child;
- Causing a child to watch a sexual act;
- Child sex offences committed by children or young persons;
- Arranging or facilitating commission of a child sex offence;
- Meeting a child following sexual grooming etc;
- Abuse of position of trust: sexual activity with a child;
- Abuse of position of trust: causing or inciting a child to engage in sexual activity;
- Abuse of position of trust: sexual activity in the presence of a child;
- Abuse of position of trust: causing a child to watch a sexual act.
Under 13's cannot consent to sexual activity by law. It only has to be proved that sexual activity took place for an offence to have been committed.
Between 13 -16 years, children and young people are legally incapable of giving consent. However the issue may be debated according to the circumstances of the case.
From 16 years and over, a young person can give valid consent to any sexual activity. Young people 16 and 17 are not deemed to be able to give consent if the activity is with an adult in a position of trust or a family member as defined by the Sexual Offences Act, 2003.
Young people still have a right to confidential advice on contraception, condoms, pregnancy and abortion, even if they are under 16.
Although the age of consent remains at 16, the law is not intended to prosecute mutually agreed teenage sexual activity between young people of a similar age, unless it involves abuse or exploitation.
There is no minimum age to rape. If two 12 years olds 'consensually' experiment with penetrative sex, with nothing to suggest exploitation, the perpetrator commits an offence of rape.
Appendix C: Risk / Needs Assessment Template
Click here to view Appendix C: Risk / Needs Assessment Template.
Appendix D: Sexual Health Network Sexual Exploitation Risk Indictor Tool for Practitioners within Sexual Health Services Only
Appendix E: Guidance Document to be used with Appendix D
Click here to view Appendix E: Guidance Document to be used with Appendix D.
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