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3.27 Guidance for Professionals Safeguarding Sexually Active Young People Under the Age of 18 Including Those at Risk of Sexual Exploitation in Oxfordshire

RELATED GUIDANCE AND LEGISLATION

Sexual Offences Act 2003

Bichard Inquiry 2005

Working Together 2015

RELATED CHAPTERS

Child Sexual Exploitation Procedure

Information Sharing Protocol

Contacts and Referrals (Oxfordshire Children, Education and Families - Children's Social Care Procedures Manual)

AMENDMENT

This chapter was reviewed and updated in December 2015. The chapter has been substantially rewritten and a new Appendix 2: Legal Briefing: Range of Court Orders Available to Combat Child Sexual Exploitation has been added.The chapter should be read in its entirety.


Contents

  1. Introduction
  2. Assessment
  3. Process
  4. Young People under the Age of 13
  5. Young People between 13 and 15
  6. Young People between 16 and 18
  7. Sharing Information with Parents/Carers
  8. Additional Sexual Offences

    Appendix 1: Flowchart for Professionals Working with Sexually Active under 18s

    Appendix 2: Legal Briefing: Range of Court Orders Available to Combat Child Sexual Exploitation

    Appendix 3: Other Guidance and Legislation

    Appendix 4: Best Practice Guidance in Providing Contraception and Sexual Health Advice to Young People.


1. Introduction

This protocol has been devised with the understanding that many young people under the age of 18 will have an interest in sex and sexual relationships. It remains unlawful for children under the age of 16 years to have sexual intercourse and professionals should bear this in mind to ensure they do not become desensitised to the issues.

The protocol applies to both girls and boys and where sexual partners are male or female and the same or opposite gender.

It is supported by:

Appendix 1: Flowchart for Professionals Working with Sexually Active under 18s

It is designed to assist those working with children and young people to identify where these relationships may be coercive or abusive, and when 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 or young person is paramount, and emphasises 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.

All agencies that have contact with children and young people should use this protocol to develop and implement local guidance for their own staff.

This guidance has to recognise that many children  including vulnerable children engage in sexual activity. This does not mean professionals have to condone such behaviour but need to work with children in order for such children to better understand the risks and consequences of such behaviour.  It should be used in conjunction with Oxfordshire Safeguarding Children Board Child Protection procedures and Information Sharing Protocol.


2. Assessment

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.

In assessing the nature of any particular behaviour, it is essential to look at the specific detail of the 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. The possibility of child sexual exploitation should always be considered and the premise ‘If you can’t rule it out, rule it in’ (Barnado’s) be adopted. Where there are concerns, the Child Sexual Exploitation Screening Tool should be used. Professionals should be aware that one way of grooming for sexual exploitation includes a same age ‘boyfriend’ developing a relationship with the child before passing them on to adult perpetrators.

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 being or have been exploited or subjected to abusive behaviour. Staff need to be aware that the Sexual Offences Act 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. The Act includes 3 new categories of offences to provide additional protection.

  • Act covers offences committed against those who, because of profound mental disorder, lack the capacity to consent to sexual activity;
  • The Act covers offences where a person with a mental disorder is induced, threatened or deceived into sexual activity; 
  • The Act makes it an offence for people providing care, assistance or services to someone in connection with a mental disorder to engage in sexual activity with that person.

In order to determine whether the relationship presents a risk to the young person, the following risk 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 and which might suggest sexual exploitation;
  • 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 substance misuse, places them in a position where they are unable to make an informed choice about the activity and is therefore at risk of sexual exploitation;
  • 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 any agency as having other concerning relationships with similar young people;
  • Whether the young person denies, minimises or accepts concerns expressed by professionals;
  • Whether methods used to secure compliance and/or secrecy by the sexual partner are consistent with behaviours considered to be ‘grooming’ (Appendix 4: Best Practice Guidance in Providing Contraception and Sexual Health Advice to Young People);
  • Whether sex has been used to gain favours (e.g. swapping sex for cigarettes, clothes, gifts, trainers, alcohol, drugs etc.) suggesting the young person is being sexually exploited;
  • 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. See Appendix 4: Best Practice Guidance in Providing Contraception and Sexual Health Advice to Young People.


3. Process

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 young person can only be safeguarded by sharing information with others on a need to know basis.

This discussion with the young person may prove useful as a means of emphasising the gravity of some situations. Any referral or potential referral should be discussed in the first instance with the young person unless there are concerns about this affecting their safety. This includes consideration of whether the young person may alert a perpetrator to possible criminal proceedings or enforcement action.

The decision making process must consider the relationship between the professional and the young person, and seek to build trust as far as possible. The amount of information that will be forthcoming will vary from one setting to another, and will be affected by whether the professional has any prior knowledge of the young person.

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 and or the designated child sexual exploitation lead professional. There may then be a need for further consultation with the Children’s Assessment team or the Kingfisher CSE Team. 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 and must not be made by one person alone (agency procedures must include guidance on how this is to be undertaken within their own organisation).

During this process agencies must continue to offer services and support to the young person.

Where there are concerns a referral should be made to the Multi-agency safeguarding hub (for assessment in the usual way) - accompanied by a completed Child Sexual Exploitation Screening Tool if CSE is suspected. They will record the referral and will determine whether the concerns indicate CSE and whether to forward the referral to the Kingfisher Team. In all cases checks will be undertaken including whether the child is or has been subject to a child protection plan.

In most cases there will be a CSE Strategy Meeting or strategy discussion with relevant partner agencies including the Police. This discussion should be informed by the assessment undertaken using this protocol.

In circumstances where the perpetrator is also a child then it may l not be in the best interests of the young person for criminal or civil proceedings to be instigated. However, Police and other agencies may hold vital information that will assist in any clear assessment of risk and the planning process. Where child sexual exploitation is the issue or where the relationship is coercive or abusive however, criminal proceedings may be appropriate.

If there are concerns that the young person may be at risk of child sexual exploitation the CSE screening tool should be completed and a referral should be discussed with the Children’s Assessment Team. If the situation is an emergency, the local police should be contacted immediately.


4. Young People under the Age of 13

Under the Sexual Offences Act 2003, children under the age of 13 are by law deemed incapable of giving consent to any form of sexual activity. Any offence under the Sexual Offences Act 2003 involving a child under the age of 13 is very serious and must be taken to indicate a risk of significant harm to the child. Penetrative sex with a child under the age of 13 is classed as rape.

All cases where the sexually active young person is under the age of 13 must be discussed with a nominated child protection lead in the organisation. Each case must be assessed individually. There should be a presumption that a referral is made to the Multi-agency safeguarding hub in order that a full assessment can be made. For this to be meaningful, the young person will need to be identified, as will their sexual partner(s) if details are known.

The referrer should also encourage the young person to share information about the referral with their parents and carers where safe to do so.

If this is not safe (for example where a parent or carer is implicated) there should be a discussion with the young person in order to identify an adult who can be made aware of the referral and who is able to offer on-going support.

When the Children’s Assessment team has a case referred to them, a strategy discussion should be convened, involving police, health and relevant agencies to discuss the appropriate next steps.

The Police must be notified as soon as possible when a criminal offence has been committed against a child.

When a girl under 13 is found to be pregnant, a referral to the Multi-agency Safeguarding Hub and the Children’s Assessment Team will hold a strategy discussion with the police and/or other agencies. If appropriate the referral will be passed to the Kingfisher Team. At this stage a multi- agency support package should be formulated.


5. Young People between 13 and 15

The Sexual Offences Act 2003 recognises and 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.

Sexually active young people in this age group will still have to have their needs assessed using this protocol. Discussion with the Children’s Assessment team 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 legally not capable to give consent to such sexual activity.

The Police must be notified as soon as possible. Not all notifications to the police result in criminal investigation and prosecution. The Police, Children’s Social Care and other agencies should exercise discretion in the interests of the child. The criteria below should also support any decisions taken after the police have been notified. (Bichard Inquiry)

The decision should take account of:

  • Whether there are factors such as disability, mental health problems, communication issues which impact on the child’s ability to make informed choices;
  • Whether there are other factors such as a child who may have been trafficked;
  • Overt aggression;
  • Age or power imbalances;
  • Coercion or bribery indicating sexual exploitation;
  • The misuse of substances as a disinhibitor;
  • Whether the child’s own behaviour, because of the misuse of substances, places him/her at risk so that he/she is unable 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 sexual partner is known by one of the agencies (which presupposes that checks will be made with the police);
  • Whether the child denies, minimises or accepts concerns;
  • Whether the methods used are consistent with grooming, indicating sexual exploitation.


6. Young People between 16 and 18

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 child sexual exploitation through the abuse of power in the 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 Act raises the age of those protected from familial child sexual abuse from 16 to 18. It is recognised that the modern family unit is often complex and has therefore defined family relationships to take into account situations where someone is living within the same household as a child and assuming trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or ‘common law’ partnerships.


7. Sharing Information with Parents/Carers

Decisions to share information with parents and carers will be taken using professional judgement, consideration of Fraser guidelines and in consultation with the Child Protection 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 an assessment of 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 and support the young person to share information with their parents and carers wherever safe to do so. A decision not to inform parents and/or carers and the reasons for this, should always be recorded in writing.

This protocol is written on the understanding that those working with this vulnerable group of 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.


8. Additional Sexual Offences

Sexual Offences Act also added some additional offences that are of particular relevance.

Abuse of Trust (Section 21 Sexual Offences Act 2003)

Those who are in a position of trust will normally have power and authority in a child’s life and are, therefore, in a position to have a key influence on their futures. Because of this special position and the fact that many of the children they deal with are vulnerable, there are additional responsibilities for them to ensure their behaviour is appropriate at all times. Engaging in sexual activity with a child under the age of 18 is, therefore, a criminal offence. Those in a position of trust will have regular contact with children and may be acting in loco parentis. They will include teachers, hospital staff, residential works, social workers and foster carers.

Sexual Grooming (Section 15 Sexual Offences Act 2003)

Sexual grooming is where an adult person intentionally arranges to meet or to travel with the intention of meeting a child under the age of 16 with the intention of engaging in sexual activity with that child. The sexual grooming element to this relates to a course of conduct prior to that meeting.  This could include sending explicitly sexual content, via social media/sexting, however, the prior meetings or communication need not have had explicit sexual contact. The intended offence does not have to take place, however, evidence of intention to commit an offence may be drawn from the nature of the communications or contact between the adult and the child or may be drawn from other circumstances, for example, travelling to a meeting with ropes, condoms and lubricants. Previous meetings or communications can have taken place in or across any part of the world. 

Other Legal Powers

For a list of other orders, including those designed to disrupt and prevent sexual abuse, please refer to the Legal Briefing: Range of Court Orders Available to Combat Child Sexual Exploitation (Appendix 2).


Appendix 1: Flowchart for Professionals Working with Sexually Active Under 18s

Click here to view Appendix 1: Flowchart for Professionals Working with Sexually Active under 18s.


Appendix 2: Legal Briefing on the Range of Court Order Available to Combat Child Sexual Exploitation

Appendix 2: Legal Briefing: Range of Court Orders Available to Combat Child Sexual Exploitation


Appendix 3: Other Guidance and Legislation

Sexual Offences Act 2003

Bichard Enquiry 2005

Working Together 2015

Enabling People to Access Contraceptive and Sexual Health Information and Advice: Legal and Policy Framework for Social Workers, Residential Social Workers, Foster Carers and other Social Care Practitioners; Department for Education and Skills Teenage Pregnancy Unit 2004

Best Practice Guidance for Doctors and Health Professionals on the Provision of Advice and Treatment to Young People Under 16 on Contraception, Sexual and Reproductive Health, DoH July 2004

General Medical Council Note – 18 Years: Guidance for All Doctors


Appendix 4: Best Practice Guidance in Providing Contraception and Sexual Health Advice to Young People

It is considered good practice for doctors and other health professionals to consider the following issues when providing advice or treatment to young people under 16 on contraception, sexual and reproductive health.

If a request for contraception is made, doctors and other health professionals should establish rapport and give a young person support and time to make an informed choice by discussing:

  • The emotional and physical implications of sexual activity, including the risks of pregnancy and sexually transmitted infections;
  • Whether the relationship is mutually agreed and whether there may be coercion, abuse or child sexual exploitation;
  • The benefits of informing their GP and the case for discussion with a parent or carer. Any refusal should be respected. In the case of abortion, where the young person is competent to consent but cannot be persuaded to involve a parent, every effort should be made to help them find another adult to provide support, for example another family member or specialist youth worker;
  • Any additional counselling or support needs.

Additionally, it is considered good practice for doctors and other health professionals to follow the criteria outlined by Lord Fraser in 1985, in the House of Lords’ ruling in the case of Victoria Gillick v West Norfolk and Wisbech Health Authority and Department of Health and Social Security. These are commonly known as the Fraser Guidelines:

  • The young person understands the health professional’s advice;
  • The health professional cannot persuade the young person to inform his or her parents or allow the doctor to inform the parents that he or she is seeking contraceptive advice;
  • The young person is very likely to begin or continue having intercourse with or without contraceptive treatment;
  • Unless he or she receives contraceptive advice or treatment, the young person’s physical or mental health or both are likely to suffer;
  • The young person’s best interests require the health professional to give contraceptive advice, treatment or both without parental consent.

End