PG42. Sexually Active Children

1.1

This Procedure is designed to assist professionals to identify where children and young people's sexual relationships may be abusive and the children and young people may need the provision of protection or additional services. It is based on the core principle that the welfare of the child is paramount and on the evidence that there has been a recent increase in rape of teenagers by their peers in London.

The Procedure emphasises the need to accurately assess the risk of significant harm when a child or young person is engaged in a sexually active relationship and acknowledges that cases of underage sexual activity which present cause for concern are likely to raise difficult issues and should be handled particularly sensitively.

2.1

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 significant harm to the child. 

2.2

Cases involving under 13s should always be discussed with a designated child protection lead in the organisation. Under the Sexual Offences Act, penetrative sex with a child under 13 is classed as rape. Where a practitioner is concerned that a child is involved with penetrative sex, or other intimate sexual activity, there will always be reasonable cause to suspect that a child, whether girl or boy, is suffering or is likely to suffer Significant Harm.

There is a presumption that the case will be referred to  local authority Children's Social Care and that a Strategy Discussion will be held to discuss appropriate next steps (see sections 6.2 and 6.3 below). 

2.3

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. The professional should make this assessment using the considerations in Risk Indicators below.

2.4

Within this age range, the younger the child, the stronger the presumption must be that sexual activity will be a matter for concern. Practitioners should discuss their concerns with their designated safeguarding children professional and subsequently with other agencies as required. Where confidentiality needs to be preserved, a discussion can still take place without identifying the child. 

2.5

Where there is reasonable cause to suspect that significant harm to a child has occurred or might occur, as in section 2.2 above, there is a presumption that the case will be referred to  local authority Children's Social Care and a strategy discussion should be held to discuss appropriate next steps (see sections 6.2 and 6.3 below). Again, all cases should be carefully documented including where a decision is taken not to share information.

Assessing young people's needs

3.1

When a professional becomes aware that a young person is, or is likely to be, sexually active considerations in the checklist in section 2.2 should be taken into account when assessing the extent to which a child (or other children) may have suffered, or be likely to suffer, significant  harm, and therefore the need to hold a strategy discussion in order to share information. The assessment should be based on the three dimensions of the Assessment Framework Triangle or the Common Assessment Framework where appropriate, it should be in accordance with Referral and Assessment Process. The assessment should be supervised by the professional or a colleague with relevant expertise, within their agency.

Risk Indicators

3.2

In order to determine whether a relationship presents a risk of significant harm to a young person, the following factors should be considered:

• Whether the child/young person is competent to understand, and consent to, the sexual activity they are involved in (children under 13 are not legally capable of consenting to sexual activity);

• What the child or young person in the relationship's living circumstances are, whether they are attending school, whether they or their siblings are receiving services from  local authority Children's Social Care or another social care agency etc.;

• The nature of the relationship between those involved, particularly if there are age or power imbalances as outlined below (See Power Imbalances);

• Whether overt aggression, coercion or bribery was or is involved including misuse of alcohol or other substances as a disinhibition;

• Whether the child/young person's own behaviour, for example through misuse of alcohol or other substances, places him/her in a position where he/she is unable to make an informed choice about the activity; and

• Any attempts to secure secrecy by the sexual partner beyond what would be considered usual in a teenage relationship;

• Whether methods used to secure a child or young person's compliance and trust and/or secrecy by the sexual partner are consistent with grooming for sexual exploitation. Grooming is likely to involve efforts by a sexual predator (usually older than the child or young person) to befriend a child/young person by indulging or coercing her/him with gifts, treats, money, drugs, developing a trusting relationship with the child/young person's family, developing a relationship with the child or young person through the internet etc. in order to abuse the child/young person;

• Whether the sexual partner is known by one of the agencies as having or having had, other concerning relationships with children/young people (which presupposes that checks will be made with the Police):

  • In situations where asking the Police for information is deemed inappropriate due to the confidential nature of an agency's relationship with the client, the agency making the decision not to check with the Police must take responsibility for conducting a risk assessment without relevant Police information. This decision must be made within the agency's supervision arrangements and at first line manager level or above. (See also Disabled Children and Young People).

• Whether the child/young person denies, minimises or accepts the concerns held by professionals.

Power Imbalances

3.3

Sexual abuse and exploitation of a child or young person involves an imbalance of power. The 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.

3.4

Whilst a large age differential could be a key indicator e.g. a 15-year-old girl and a 20-year-old man, practitioners should be aware that a 14 or 15 year old boy, supported by a group of his peers, is able to exert very real pressure over a girl of the same age or older. There will also be instances when the sexual predator is a woman or girl and the victim is a boy.

3.5

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 a young person - and conduct an holistic assessment of the young person's needs.

3.6

There will be an imbalance of power and the child or young person will not be deemed able to give consent if the sexual partner is in a position of trust or is a family member as defined by the Sexual Offences Act 2003; and/or any pre-existing legislation.

Assessing Risk using Police Information

3.7

In cases of concern, when sufficient information is known about the sexual partner/s the agency concerned should check with other agencies, including the police, to establish whatever information is known about that person/s. The Metropolitan Police will normally share the required information without beginning a full investigation if the agency making the check requests this.

3.8

Accessing Police Information (see also Appendix 1, Police Information Request/Referral Process). The practitioner should call the local Metropolitan Police Sapphire Team (note: Specially trained local Metropolitan Police teams who investigate extra-familial sexual assault and rape) accessed through their local police station, or in the case of abuse by a carer, the local Police Child Abuse Investigation Team (CAIT).

4.1

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. 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.

4.2

In assessing whether a relationship presents a risk of significant harm to a disabled child or young person, professionals need to consider the indicators listed in section 2.2 above in the light of these potential additional vulnerabilities.

4.3

A child or young person with moderate learning difficulties could be vulnerable to harm from a sexual relationship developed through inclusive activities. This may be in mainstream schools, education colleges, leisure centres and other places where children and young people meet where supervision is at a minimum. Staff need to be alert to the different capabilities of the children and young people they supervise, and assess risks accordingly.

4.4

Where professionals in local authority Children's Social Care have concerns that a relationship may present a risk of harm to an older disabled young person, they should begin work with the Council's adult protection staff at an early point in order for there to be a smooth transition from protection under the Children Act 1989 to protection for the young person, from their 18th birthday onwards, under the local Safeguarding Vulnerable Adult Procedures. 

5.1

The Welfare of the Child/Young Person is Paramount

5.2

The first duty of every practitioner is to safeguard and promote the welfare of the child or young person and other children and young people. It must always be made clear to children and young people at the earliest opportunity and throughout any working relationship that the duty of confidentiality is not absolute, and that there will be some circumstances where the needs of the child or young person, or other children and young people, can only be safeguarded by sharing information with others. (See Sharing Information Procedure).

5.3

This discussion with the child or young person should include asking them their thoughts, feelings and wishes. The discussion can be useful as a means of emphasising the gravity of some situations.

Confidentiality

5.4

The Sexual Offences Act 2003 does not affect the duty of care and confidentiality of health and social care professionals to children and young people 13 to 16 years old. According to current Government guidance for health and social care professionals, 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, unless it involves abuse or exploitation.

5.5

Decisions to share information with parents require staff to use their professional judgement and should be informed by the Information Sharing Guidance. Decisions by health, and other professionals not to share information should be informed by the Fraser Guidelines (note: The Fraser Guidelines, also known as the Gillick Competency test. In 1980's the House of Lords ruled that young people under 16, who are fully able to understand what is proposed, and its implications, are competent to consent to medical treatment regardless of age) - that the child or young person ('s):

• Understands the professional advice;

• Cannot be persuaded to inform his/her parents;

• Is likely to have intercourse without contraception;

• Physical and/or mental health is likely to suffer without advice and support;

• Best interests require advice and support without parental consent.

Reviewing Needs

5.6

On each occasion that a practitioner has contact with a young person (by telephone or a meeting) or receives information about them, consideration should be given as to whether the young person's circumstances have changed in a way which may require referral (or re-referral) to  local authority Children's Social Care and the Police.

When there are no Concerns

6.1

The decision whether or not to make a formal referral to local authority Children's Social Care and the Police must be made within the supervision arrangements within an agency for making such a decision.

6.2

Where an agency involved knows that a young person 13 or over, is sexually active but the practitioner's assessment does not raise concerns that the young person's sexual relationship is abusive, then that agency should continue to make arrangements for the young person to receive confidential advice and support from appropriate sexual health and other services. These services will be listed in the local Teenage Pregnancy Team's directory of resources.

6.3

Dealing with Individual Cases of Concern of possible of Abuse or Neglect (Referral and Assessment); see also Appendix 1: Police Information Request/Referral Process.

6.4

Whenever there is reasonable cause to suspect that a child is suffering, or is likely to suffer significant harm (based on the checklist in sections 2.2 and 2.3 above), there should be a strategy discussion involving local authority children's social care and the police, and other bodies as appropriate and the referring agency. The strategy discussion should be convened by local authority children's social care and those participating should be sufficiently senior and able, therefore, to contribute to the discussion of available information and to make decisions on behalf of their agencies.

6.5

A Strategy Discussion may should be used to:

• Share available information;

• Agree the conduct and timing of any criminal investigation;

• Decide whether an Assessment under s47 of the children act 1989 (s47 enquiries) should be initiated, or continued if it has already begun;

• Plan how the s47 enquiry should be undertaken (if one is to be initiated), including the need for medical treatment, and who will carry out what actions, by when and for what purpose;

• Agree what action is required immediately to safeguard and promote the welfare of the child, and/or provide interim services and support. If the child is in hospital, decisions should also be made about how to secure the safe discharge of the child;

• Determine what information from the Strategy Discussion will be shared with the family, unless such information sharing may place a child at increased risk of Significant Harm or jeopardise police investigations into any alleged offence(s);

• Determine if legal action is required.

6.6

See Recognising Abuse and Neglect Procedure and Referral and Assessment Procedure.

Abuse through Sexual Exploitation

6.7

If there are concerns that the child or young person may be at risk of abuse through sexual exploitation (prostitution or pornography, including creating/exchanging images, grooming etc. through the internet), a referral to Children's Social Services and to the Metropolitan Police Service must be made in accordance with Referral and Assessment Procedure.

6.8

See also Sexual Exploitation Procedure.

Children under the age of 13 years

6.9

All cases of children under the age of 13 years believed to be engaged in penetrative sexual relationships or activity must be referred to local authority Children's Social Care and the Police. (see section 2.2)

6.10

Local authority children's social care will discuss the case with the local Metropolitan Police Child Abuse Investigation Team and will carry out either an assessment or a s47 enquiry, in respect of every young person under 13 years old.  This recognises the particular vulnerability of children of this age engaging in sexual behaviours; and the position that, whilst sexual activity for young people under the age of 16 remains illegal, 13 - 16 year olds are deemed competent to give consent, whereas children under the age of 13 are deemed too young to give their consent to sexual activity (Sexual Offences Act 2003 [HMSO 2004]).

Children/Young people 13 up to their 18th Birthday

6.11

In all cases relating to possible abuse or neglect, local authority Children's Social Care will respond in one of three ways and will advise the referrer of which plan is in place:

• An assessment will be undertaken to identify the child or young person's level of need and service provision;

• The assessment may identify the child or young person as having suffered, or being likely to suffer Significant Harm and being in need of protection. This will necessitate a Child Protection Enquiry and an Assessment of need under section 47 of the Children Act 1989;

• Where no concerns are identified, there will be no further action. In these cases local authority Children's Social Care will advise the referrer verbally and in writing as to why the agency is to take this position.

6.12

In cases where local authority children's social care identify a risk of significant harm or are aware that an offence may have been committed against a child, they will hold a strategy discussion with the police (which may include the referrer), who will check their records about the children/young people and/or adults involved and share information with local authority Children's Social Care. The local authority Children's Social Care and Police Child Abuse Investigation Team will, together with other involved agencies determine the need or otherwise for child protection enquiries to be made.

6.13

In any cases where local authority children's social care staff receive a referral or become aware of a sexually active young person 13 or over, and under the age of 16 and decide not to make a formal referral to the Police, this decision must be made by a first line manager or above; and only after Police indices have been checked. A decision not to not make a formal referral to the Police will usually only be made by local authority Children's Social Care after an assessment, when there is clear evidence that the young person is not being abused or exploited through the sexual relationship. The decision and the reasons for it, must be recorded contemporaneously in the local authority Social care record for the young person.

6.14

In some cases planned immediate protection will take place following a strategy discussion. In most cases where a practitioner has concerns that a relationship presents a risk of harm to a young person, there will be a process of interagency information sharing and discussion in order to formulate an appropriate plan. Immediate or ongoing support should be offered to the young person whilst an appropriate single or multi-agency plan is put in place.

6.15

Where a young person has lived outside the particular local authority area, the social worker and police officer must obtain relevant social, education and health and police information respectively. Where a young person has lived for some of his/her life outside the UK, the social worker and police officer must use agencies such as embassies and Children and Families Across Borders, or Interpol to gather relevant information from that country in order to develop as wide a picture of the young person's history and circumstances as possible.

7.1

It is an offence for any young person to engage in a sexual relationship under the age of 16. Nevertheless, in the majority of cases, it will not be in the best interests of the young person for criminal proceedings to be instigated against them.

7.2

The decision as to whether or not to proceed with criminal action against a young person who has been referred to the Metropolitan Police Service will be made by the Crown Prosecution Service acting upon the advice of the Metropolitan Police. The best interests of the young person concerned will be one factor in informing this decision.

7.3 

All agencies hold responsibilities under the Crime and Disorder Act 1998 to assist with the prosecution of criminal actions in their local area. In some cases, the Police may hold information about a young person or an adult involved with a young person and this may be critical in achieving the protection of a young person. When the Police service is advised of a likely criminal offence, it will record the information it receives but will investigate according to whether or not the individual circumstances of the case warrant it. The Police will liaise with Children's Social Services about an investigation, unless the urgency to act to protect an individual or secure arrests precludes them from so doing. 

8.1

Sexual activity involving a 16 or 17 year old, though unlikely to involve an offence, may still involve significant harm.  Professionals should still bear in mind the considerations and processes outlined in this guidance in assessing that risk, and should share information as appropriate.  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 (Sexual Offences Act 2003 [HMSO 2004] and pre-existing legislation).