Underage Sexual Activity

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.

In all cases where the sexually active child is under the age of 13, a referral (see Referrals Procedure) must be made to Children's social care and a full assessment undertaken in consultation with partner agencies, including the Police.

When a girl under 13 is found to be pregnant, a referral to Children's social care must be made. An Assessment will be undertaken and a Strategy Discussion with the Police and other agencies will take place. At this stage a multi-agency support package should be formulated.

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 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.

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.

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.

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 protection under the Children Act 1989.

Consideration still needs to be given to issues of sexual exploitation 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.

The Sexual Offences Act 2003 does not affect the ability of health professionals and others working with young people to provide confidential advice or treatment on contraception, sexual and reproductive health to young people under 16.

The Act 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 or promoting the child's emotional well-being by the giving of advice.

In all cases, the person must not be causing or encouraging the commission of an offence or a child's participation in it. Nor must the person be acting for the purpose of obtaining sexual gratification.

This exception, in statute, covers not only health professionals, but anyone who acts to protect a child, for example teachers, Personal Advisers, youth workers, social care practitioners and parents.

Guidelines 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 or safe sex advice and treatment without parental consent.

See also Information Sharing Procedure

The duty of confidentiality owed to a person under 16 is the same as that owed to any other person. This duty however is not absolute. Confidential information may be shared without a young person's consent if a professional believes there is a risk to the health, safety or welfare of a young person or others, which is so serious as to outweigh the young person's right to privacy. The young person's right to privacy must be balanced against the degree of current or likely harm and the potential benefits to their overall safety and wellbeing.

Any disclosure without consent must be justifiable according to the particular facts of the case and should only take place after first offering to support the young person with a voluntary disclosure.

All services providing advice and treatment on contraception, sexual and reproductive health to young people should produce an explicit confidentiality policy which reflects this guidance, and which informs them of their information sharing policy.

Confidence is only breached when the sharing of confidential information is not authorised by the person who provided it or to whom it relates.

If information is provided on the understanding that it will be shared with a limited range of people or for limited purposes, then sharing in accordance with that understanding will not be a breach of confidence. Any information that is shared should be shared on a need to know basis.

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;
• 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;
• The young person has a lot of money or other valuable things which cannot be accounted for.

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.

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.

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 person in their agency responsible for child protection. 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.

Where there are concerns that a young person may be at risk of sexual exploitation, a referral should be made to Children's social care in accordance with the Referrals Procedure; where the situation is an emergency, the local police should be contacted immediately.

When a referral is received by Children's social care, consideration will be given to the need for an assessment and a Strategy Discussion/Meeting.

After the Strategy Discussion there may be one of the following responses:

• That the child is not In Need. In which case Children's social care s will take no further action other than, where appropriate, to provide information and advice or sign- posting to another agency in accordance with the local Common Assessment Framework criteria;
• That the child is in need but there are no concerns that the child has suffered, or is likely to suffer, Significant Harm. In which case Children's social care, in consultation with other agencies, will determine what services they should provide and whether to continue an Assessment;
• That the child is in need and that there are concerns that the child has suffered, or is likely to suffer, Significant Harm. In which case Children's social care will initiate a Section 47 Enquiry and an Assessment.

Any girl, either under or over the age of 13, who is pregnant, must be offered specialist support and guidance by the relevant services. Such services should also be a part of the assessment of the girl's circumstances.