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Introduction

Many children will develop a healthy and developmentally appropriate interest in sexual relationships whilst they are still young, and some will do this before they reach the age of consent.

Cases of underage sexual activity are likely to raise difficult issues for practitioners, and need to be handled with particular sensitivity. The Sexual Offences Act 2003 sets out the law in relation to all children under 16 who legally cannot consent to sex; it makes a separate distinction for children under 13 for whom any sexual activity should be considered at risk of Significant Harm. Most children aged over the age of 16 will have a healthy interest in sex and sexual relationships.

This guidance is intended to assist in identifying sexual relationships which may be abusive and whether a child needs the provision of protection or additional services. Sexual relationships can be abusive for a number of reasons, but primarily it is associated with a power imbalance. This may be due to a child’s mental ill health, psychological problems, emotional immaturity, physical disability, learning disability or other communication difficulty, substance misuse, low esteem or other vulnerability. It may also reflect differences in age, size or development between the partners. The partner may have psychological problems, or a personality disorder, or they may be in a position of trust in relation to the child. It may be a combination of these factors.

Practitioners should always be alert to any indicators that a child may be at risk of Child Sexual Exploitation.

Interventions should be aimed at protection of children who are vulnerable and the provision of information and contraception (where appropriate) for all other children.


Definition

The Sexual Offences Act differentiates between certain types of offence in the context of a victim’s age and his or her ability to give consent. In law, a child under 13 is not deemed capable of consenting to sexual acts. Any act of sexual intercourse with a child under 13 years old is always therefore an offence of rape.

The Act also clarifies the offence of Abuse of Position of Trust (Section 21 of the Sexual Offences Act 2003). This offences applies to sexual activity by someone in a position of trust with any child under 18, and is designed to protect children up to the age of 18, who are considered to be vulnerable to abuse and exploitation from people that hold a position of trust or authority in relation to them.

Children can be subject to offences of rape and assault and the circumstances of any incident may need to be explored with them.

For the purposes of this guidance the key age groups identified are:

  • Children under the age of13;
  • Children aged between 13 and 15; and
  • Children over the age of consent and up to the age of 18.

Children under the age of 13

Sexual activity with a child under the age of 13 is illegal, as under the law s/he cannot consent to such behaviour. Any type of sexual activity therefore, is considered as risk of Significant Harm to the child.

In all cases where a practitioner becomes aware that a child under the age of 13 is sexually active they should discuss it with the designated safeguarding lead in their agency. The matter should then be referred to Children’s Social Care (see Any Contacts with Children's Social Care (including Information Sharing and Referrals) Procedure).

Children aged 13 – 15

The Sexual Offences Act 2003 recognises 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 remains at 16. This acknowledges that this group of children are still vulnerable, even when they do not view themselves as such.

Consideration should be given in every case of sexual activity involving a child aged 13-15 as to whether a referral should be made to Children’s Social Care. Cases of concern should be discussed with the designated safeguarding lead 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 (either directly or indirectly).

The Assessment Criteria below should be used when assessing whether or not any sexual activity is a matter of concern. The younger the child(ren), the stronger the presumption must be that sexual activity will be a matter of concern. Consideration needs to be to issues of Child Sexual Exploitation and abuse of power. See Child Sexual Exploitation (CSE) Safeguarding Practice Guidance.

Children aged 16 – 18

Although sexual activity in itself is not an offence over the age of 16, children under the age of 18 are still offered protection under the Children Act 2004, if required. Children over the age of consent and up to 18 years may still suffer sexual harm through exploitation by predatory adults or through a sexual partner who is abusing a position of trust.

Children aged 16 to 18 are not deemed able to give consent if the sexual activity is with an adult in a position of trust (see Allegations of Harm Made Against People who Work with Children Safeguarding Practice Guidance) or a family member, as defined by the Sexual Offences Act 2003. It is also illegal for someone to have sex with a person who has a mental disorder that impedes choice.

Where there are concerns about sexual exploitation, see Child Sexual Exploitation (CSE) Safeguarding Practice Guidance.


Assessment Criteria

The considerations in the checklist below should be taken into account when assessing the extent to which a child (or other children) is suffering or is likely to suffer significant harm because of involvement in sexual activity:

  • 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;
  • Behaviour of the child e.g. if they are withdrawn or anxious;
  • The level of maturity and understanding of the child e.g. whether the child is Fraser Competent to understand and consent to the sexual activity they are involved in;
  • What is known about the child’s living circumstances or background;
  • Familial child sex offences;
  • Age imbalance, in particular where there is a significant age difference;
  • Overt aggression or power imbalance;
  • Coercion or bribery including the use of sex for favours e.g. exchanging sex for clothes, mobile devices, alcohol, drugs, cigarettes etc. This could also manifest itself in a child having large amounts of money, jewellery or other valuables that cannot be accounted for;
  • The misuse of substances to reduce inhibitions;
  • Whether the child’s own behaviour, because of the misuse of substances places him/her at risk of harm resulting in an inability 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/or an accompanying adult gives professionals cause for concern;
  • Whether the sexual partner/s is known by one of the agencies (particularly if this is a result of having other concerning relationships); and
  • The nature of the relationship between those involved, particularly if there are age or power imbalances.

It is considered good practice for workers to follow the Fraser guidelines when discussing personal or sexual matters with a child under 16. The Fraser guidelines give guidance on providing advice and treatment to children under 16 years of age. These hold that sexual health services can be offered without parental consent providing that:

  • The child understands the advice that is being given;
  • The child cannot be persuaded to inform or seek support from their parents / carers, and will not allow the worker to inform the parents / carers that contraceptive/protection, e.g. condom advice, is being given;
  • The child is likely to begin or continue to have sexual intercourse without contraception or protection by a barrier method;
  • The child’s physical or mental health is likely to suffer unless they receive contraceptive advice or treatment;
  • It is in the child’s best interest to receive contraceptive/safe sex advice and treatment without parental consent.

Protection and Action to be Taken

In working with children, 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 children can only be safeguarded by sharing information with others.

In some cases urgent action may need to be taken to safeguard the welfare of a child. 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 child should initially discuss this with their designated safeguarding lead. There may then be a need for further consultation with Children’s Social Care for the relevant area. All discussions should be recorded, giving reasons for action taken and who was spoken to.

Referral Process

Where a practitioner is concerned that a child has suffered or is likely to suffer Significant Harm they should follow the Any Contacts with Children's Social Care (including Information Sharing and Referrals) Procedure.


Sharing Information with Parents and Carers

Decisions to share information with parents/carers will be taken using practitioner judgement, following discussion with the child and in consultation with other involved agencies. Decisions will be based on their age, maturity and ability to appreciate what is involved in terms of the implications and risks to themselves. Their relationship with their parents/carers, and the nature of the sexual relationship should also be considered when making a decision as well as the parents’/carers’ ability and commitment to protect their child.

Given the responsibility that parents/carers have for the conduct and welfare of their children, practitioners should encourage the child at all points, to share information with their parents/carers wherever it is safe to do so.


Advice, Information and Support

If a child has disclosed sexual activity to a practitioner but there are no causes for concern the following discussions should take place with them:

  • Risk of pregnancy and contraceptive advice;
  • Sexually transmitted infections;
  • Safer sex; and
  • Emotional response to being in a sexual relationship.

Information leaflets should also be provided to the child and referral to local specialist agency Cornerhouse (01482 327044).

There are a range of training opportunities available for all staff working with children to enable them to provide accurate information and advice on a range of issues relating to sexual health and relationships.

See the Hull Safeguarding Children Board website for more information / contacts.

End.