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5.36 Sexually Active Young People Under the Age of 18

SCOPE OF THIS CHAPTER

This policy is about the protection of vulnerable children engaging in risk taking behaviour not the criminalisation of young people. The decision to prosecute offenders under the age of 16 will be taken on a case by case basis and only after consultation with other child protection agencies.  

NATIONAL GUIDANCE

A Guide to Assessing Sexual Behaviours - Traffic Light Tool – produced by Brook

RELATED CHAPTERS

Child Sexual Exploitation - Pan Lancashire Standard Operating Protocol

RELATED LOCAL GUIDANCE

Blackpool Pathway for Assessing Children and Carers at Risk of Sexual Harm

Blackpool Risk of Sexual Harm Consultation Form

Blackpool Guidance and Purpose of Risk of Sexual Harm Consultation Form

AMENDMENT

In November 2013, this chapter was updated to reflect the Single Assessment Framework.


Contents

  Introduction
  Allegations of Harm Arising from Underage Sexual Activity
  Assessment
  Process
  Young People Under the Age of 13
  Young People Between 13 and 16
  Young People Between 16 - 18
  Sharing Information with Parents and Carers


Introduction

  1. Each LSCB has developed a protocol with the understanding that most young people under the age of 18 will have an interest in sex and sexual relationships. Where sexual activity involving children and young people below the age of legal consent comes to the attention of agencies, it will not necessarily be appropriate to initiate the child protection procedures;
  2. The protocols are 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. They are based on the core principle that the welfare of the child or young person is paramount, and emphasise the need for professionals to work together in accurately assessing the risk of Significant Harm when a child or young person is engaged in sexual activity;
  3. This policy is about the protection of vulnerable children engaging in risk taking behaviour not the criminalisation of young people. The decision to prosecute offenders under the age of 16 will be taken on a case by case basis and only after consultation with other child protection agencies. Prosecution will not be the default position.


Allegations of Harm Arising from Underage Sexual Activity

  1. The child's best interests must be the overriding consideration in making any such decision including in the cases of underage sexual activity on which detailed guidance is given below. The Information Sharing and Confidentiality Procedure provides advice on these issues. Any decision whether or not to share information must be properly documented. Decisions in this area need to be made by, or with the advice of, people with suitable competence in child protection work such as Named Professionals or senior managers;
  2. 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;
  3. Cases involving under-13s should always be discussed with a Named Professional in the organisation. Under the Sexual Offences Act, 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. All cases of sexually active under 13 year olds must be reported to Children's Social Care and a Strategy Discussion held.
  4. Sexual activity with a child under 16 is also an offence. Where it is consensual it may be less serious than if the child were under 13, but may nevertheless have serious consequences for the welfare of the young person. Consideration should be given in every case of sexual activity involving a child aged 13-15 as to whether there should be a discussion with other agencies and whether a Referral should be made to Children's Social Care. See Making a Referral to Children's Social Care Procedure. The professional should make this assessment using the considerations below. Within this age range, the younger the child, the stronger the presumption must be that sexual activity will be a matter of concern;
  5. Cases of concern should be discussed with the nominated Named Professional and subsequently with other agencies if required. Where confidentiality needs to be preserved, a discussion can still take place as long as it does not identify the child (directly or indirectly). Where there is reasonable cause to suspect that Significant Harm to a child has occurred or might occur, the case should be reported to Children's Social Care (see Making a Referral to Children's Social Care Procedure) and a Strategy Discussion should be held to discuss appropriate next steps. Again, all cases should be carefully documented including where a decision is taken not to share information.


Assessment

  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;
  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 may 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. In the assessment, workers need to include the use of sex for favours e.g. exchanging sex for clothes, CDs, trainers, alcohol, drugs, cigarettes etc. Young people could also have large amounts of money or other valuables which cannot be accounted for;
  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 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. See Legal Framework for Child Protection Procedure for more information. The Act includes 3 new categories of offences to provide additional protection;
  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';
    • Whether sex has been used to gain favours (e.g. swap sex for cigarettes, clothes, CDs, trainers, alcohol, drugs etc);
    • The young person has a lot of money or other valuable things which cannot be accounted for.
  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.


Process

  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. See Information Sharing and Confidentiality Procedure;
  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 Named Professional in their agency. There may then be a need for further consultation with Children's Social Care. 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);
  3. If you have concerns that the young person may be at risk of sexual exploitation through prostitution, please refer to Children's Social Care by completion of a Multi-Agency Assessment and Referral Form for Blackpool or the CAF form for Blackburn with Darwen and Lancashire.  If the situation is an emergency, the local police should be contacted immediately. When a Referral is received by Children's Social Care, a check will be made as to whether the child/ young person is the subject of a Child Protection Plan, followed by a Strategy Discussion with partner agencies include the Police. This discussion should be informed by the Assessment undertaken using this protocol and, in the majority of cases, may be largely for the purposes of consultation and information sharing;
  4. In many cases, it will not be in the best interests of the young person for criminal or civil proceedings to be instigated. However, Police and Children's Social Care and other agencies may hold vital information that will assist in any clear assessment of risk;  
  5. Following any Referral to Children's Social Care and after a Strategy Discussion with the Police and/or any other agencies there may be one of these responses:
    • No further action deemed necessary;
    • An Single Assessment undertaken which may identify the young person as a Child in Need and additional services provided;
    • An Single Assessment undertaken which may identify the young person as a child at risk of Significant Harm and in need of child protection intervention;
    • The outcome of the Referral will be formally fed back to the referring agency;
    • A referral will be made through Health and/or the Police to the SAFE centre for forensic and medical examinations and emotional support.
  6. During this process agencies must continue to offer the service and support to the young person. 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. A CAF should always be considered for any teenager who is known to be pregnant Young People Under the Age of 13.


Young People Under the Age of 13

  1. 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;
  2. In all cases where the sexually active young person is under the age of 13, a Referral to Children's Social Care must be made. In order for this to be meaningful, the young person will need to be identified, as will their sexual partner if details are known;
  3. When a girl under 13 is found to be pregnant, a Referral to the Children's Social Care 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.


Young People Between 13 and 16

  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;
  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 will depend on the level of risk/need assessed by those working with the young person;
  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.


Young People Between 16 - 18

  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 the protection of Child Protection Procedures under the Children Act 1989. 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.


Sharing Information With Parents and Carers

  1. Decisions to share information with parents and carers will be taken using professional judgement, consideration of Fraser guidelines and in consultation with these 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.

End