Chapter Twenty-One

Managing Reports of Underage Sexual Activity

This chapter should be read in conjunction with:

• Chapter 3:Recognition of Abuse and Neglect, Paras 91 to 116: Sexual Abuse
• Chapter 2:Information Sharing

In this section:

Introduction
Principles
Process
Options
Action taken when information is shared
Issues to consider
Further issues affecting different age groups
Problem resolution
Issues for consideration during assessment

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Introduction

21.1 Sexual relationships and sexual activity are a normal part of life.  Young people develop physically at younger ages than previously.  Although the legal age for consent to sexual activity in England and Wales is 16, many young people will develop and show an interest in sex and sexual relationships well before this age.  This may include the wish to experiment or take part in sexual activity, including sexual intercourse. Cases of underage sexual activity which cause concern are likely to raise difficult issues and should be handled sensitively.

21.2 There are two imperatives, set out in Government Guidance.  These are potentially in conflict.

• The first imperative is the need to ensure that young people are protected and that information on actual or potential abusers is shared in order to manage risky behaviour.  Involvement in sexual activity under the age of 16 involves a criminal offence and as such falls within the remit of the police to investigate. This follows a recommendation of the Bichard report and is set out in correspondence from the Home Office.
• The second is the need to reassure young people seeking advice about sexual health and contraception that confidentiality will be respected, so that they will not be deterred from seeking advice from social care and health practitioners. This is set out in Guidance from the Teenage Pregnancy Unit of the DfES and advice to practitioners from the Department of Health.

21.3 The DfES Guidance comments that 'maintaining the right balance between providing confidentiality and safeguarding young people is a complex and sensitive area of work, requiring policies for practitioners.'

21.4 The Teenage Pregnancy Guidance states ‘Although the age of consent is 16, it is not intended that the law should be used to prosecute mutually agreed teenage sexual activity between two people of a similar age unless it involves abuse or exploitation’.

21.5 This chapter provides guidance on when sexual relationships should be considered abusive; and on when information should be shared between agencies about sexual activity involving young people. The principal purpose for sharing and recording information is so that persons who pose a risk to children and young people can be identified, particularly when they repeatedly become involved in inappropriate relationships. A single relationship brought to a workers attention may not appear concerning but if one party is regularly engaging in similar activity with several other children/young people then the threshold of concern is raised. Only the more serious cases reported would result in a criminal prosecution.

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Principles

• In deciding what to do when staff become aware of information about under-age sexual activity the safety and welfare of the young people involved and other young people is the paramount consideration
• Children and young people's confidentiality should be respected and duties of confidentiality observed; but
• Limits to confidentiality should be openly acknowledged

the need to share information about sexual activity with the police or children’s social care should be discussed with the young person first, when this does not put the safety of young people at risk, or jeopardise a criminal investigation

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Process

21.6 Staff from a range of agencies may become aware that children or young people are or have been involved in sexual activity.  These include

• Health workers, particularly those in contraception services or sexual health settings, and school nurses
• Teachers and other education staff
• Social workers and other social care staff
• Police officers
• Connexions staff
• Youth workers
• Staff in voluntary agencies working with children and young people

21.7 Where there is information that any of those involved is under the age of 16, this should prompt an assessment. The issues to be considered are outlined below. Some of these should alert workers immediately to the possibility of abuse.  Others may emerge during discussion with the young person.

21.8 When working with young people, it should be made clear as early as possible that absolute confidentiality cannot be guaranteed, if their own safety or the safety of others is at risk.

21.9 Where there is any concern that the relationship may be abusive, the concerns should be discussed between agencies. Where there is concern that one of the partners may have been involved in other abusive relationships, this discussion will enable checks to be made to see whether similar concerns have been raised before.

21.10 Where there is uncertainty, an approach can be made to either the children’s social care duty worker or the police Child Abuse Investigation Unit (CAIU) to discuss the case hypothetically before deciding to make a formal referral.  

21.11 The circumstances of each situation should be considered to determine whether abuse or exploitation may be involved and whether a formal notification to the investigating agencies should be made.

21.12 For professionals seeing young people on a regular basis (e.g. for contraception and/or sexual health) it is important to consider the young person's needs on each occasion, as circumstances (and partners) may change.  Also a young person may reveal further information as confidence in the professional relationship grows.

21.13 In all cases, staff should ensure that dates of birth and full address history of both young people involved is taken so that, where necessary, checks can be made for any previous concerns against social care, police and education records.

21.14 When any discussions take place or decisions are made in response to awareness of under-age sexual activity, these should be recorded.

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Options

21.15 Depending on the considerations set out in 21.24 to 21.33, there are several possible courses of action.  Each of these should be considered as subject to review if further information is received.  Given the nature of the decision it is likely that advice will be sought and discussions take place.  Any discussion and decision should be recorded, together with the reasons for the decisions. The level of concern will be reflected by the action taken (see also attached flow chart). The options include:

• The reported activity is appropriate.  No concerns involved. No action needed
• Situation gives rise to some concern, but not clearly reaching threshold for referral.  Seek advice within agency from the child protection advisor and/or contact children’s social care Duty for discussion and advice
• Child or young person appears to be a child in need. Refer to children’s social care for CiN assessment
• Information provided and initial assessment indicates that the young person is at risk of significant harm. Refer to children’s social care who will initiate CP procedures and discuss with police as necessary
• Young person appears to be in immediate danger and/or there is clear criminal activity involved (e.g administering drugs to achieve compliance). Refer to children’s social care and police CAIU who will plan intervention and initiate CP procedures

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Action Taken When Information is Shared

21.16 Where children’s social care receive a referral or otherwise are made aware of sexual activity involving one or more young person under the age of 16, they will consider what action to take, based on similar issues to those set out in 21.24 to 21.33.

21.17 In these cases the children’s social care will determine what action to take in relation to the child, whether an assessment of a child in need of support or an enquiry under Section 47 (child protection).

21.18 Given the sensitivity of the issues involved children’s social care and police should always consult with the referrer about the best way to proceed, and feed back on the outcome. This consultation should also consider how best to involve the young people.

21.19 Where it appears helpful to do so, children’s social care will check with the police CAIU for any relevant information, particularly in relation to a person thought to be abusing a child or young person. Where information indicates that a criminal offence has or may have been committed, children’s social care should discuss this with the police. They will also consider whether it is in the child’s best interest formally to refer the matter to the police. When making this assessment it is important to consider not only the child subject of the concern, but also the risk that the other party may pose to other children and young people. Any decision not to make a formal referral to the police must be agreed at team manager level or above and the reasons clearly recorded on the young person's file (paper and/or electronic).  

21.20 If there is known or believed to have been recent sexual activity (within 7 days), the relationship is thought to be abusive and a criminal investigation is possible the police should be notified as a priority so that there is the best chance of securing forensic evidence.

21.21 Details of both people involved will be recorded, as will a known relationship between the people referred and others where this may give rise to concern. This is so that links can be made if there are subsequent concerns involving the same people.

21.22 Where the need for further investigation has been identified, a strategy discussion or meeting should take place, as set out in Chapter 5: Child Protection Enquiries inc Medical Assessments.  All staff should expect to provide such information as is necessary to ensure full discussion.

21.23 When the police receive an allegation or information that a young person under the age of 16 may be involved in sexual activity, this will be recorded.  Where it is believed that a crime has been committed, this will be recorded on a police ‘crime’ data base. Following discussion with children’s social care, as above, the police will determine whether to pursue an investigation.  This may include a decision to interview the young people involved. Where they are satisfied that an offence has been committed they will consider whether to pursue a prosecution. This decision may follow discussion with children’s social care and will be based on a number of factors, including whether it is in the best interests of the child or young person involved and in the wider public interest.

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Issues to Consider

21.24 In reaching judgements about the situation, deciding whether and what information to share and what action to take all staff should consider the following:

• The age of each partner and any difference in age between them.  The greater the age difference, the more likely it is that the behaviour is abusive.  (While chronological age is significant, young people mature at different rates.  The respective level of cognitive, emotional and social development should also be considered)
• Power imbalances.  This could involve size, strength, level of awareness or assertiveness, peer group status or development
• Whether both young people truly understand the activity they are involved in and can give informed consent. Compliance is not the same as consent
• Whether coercion, bribery or other inducement is involved
• The use of substances as a disinhibitor
• Familial background including child sex offences
• If one of the partners has a learning disability, extra care should be taken to ensure they are not being exploited
• If one of the partners has a communication difficulty, care should be taken to ensure that they understand the activity and that their wishes and feelings about it can be understood
• Attempts to secure secrecy beyond normal desire for privacy;
• Each partner's perception of the activity: if a child perceives the activity as abusive, it should be considered as such
• Presence of any elements of 'grooming' behaviour in forming the relationship or securing compliance
• What is known about other sexual partners e.g. has one partner had a series of similar relationships suggesting that they are either exploitative, or vulnerable to exploitation? Has the relationship developed from a ‘Position of Trust’?
• Is there any indication that any person involved is being exploited in prostitution? If so reference should be made to Chapter 11: Children and Young People Abused Through Prostitution.
• Is there any indication that either party has knowingly or recklessly put partners at risk of pregnancy or of contracting sexually transmitted infections?
• Are the young people related such that a sexual relationship may be unlawful or inappropriate?

21.25 It is particularly important to consider all sexual relationships between young people. Young people of both genders can both abuse and be abused. The same issues can also arise in same sex relationships.

21.26 While the wishes and feelings of children and young people should always be taken into account, it is important to recognise that younger children may not fully understand the relationship and activity.  Peer pressure and perceived norms can be powerful.  For example, a young girl may be pleased to have an older boyfriend and may comply with his wishes; but may not perceive the relationship as abusive until much later.  She may regard any attempt to stop the relationship as intrusive and wrong.

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Further Issues Affecting Different Age Groups

21.27 These should be considered in addition to the issues set out in 21.24.

Children Aged Under 13 years.

21.28 The younger the participants, the more likely that there is cause for concern. In law, children of this age cannot consent to sexual activity.  Sexual activity involving a child under 13 constitutes a 'serious arrestable offence'.  Penetrative sex with a child under 13 is classed as rape.

21.29 Any child under the age of 13 years known to have been involved in sexual activity other than simple exploratory behaviour should be subject to an assessment based on the issues set out in paragraphs 21.24 to 21.26.

21.30 If a child aged 12 years or under is believed to be, or have been, engaged in sexual activity, he/she should be referred to children’s social care unless, following discussion with the organisation’s child protection lead, the practitioner in exceptional circumstances can be fully satisfied that they can justify and have documented in detail why this would not be in the young person's best interests. Following referral there should be a strategy meeting involving children’s social care, police and relevant agencies.

Young People Between 13 and 15 years old.

21.31 Sexual activity is still illegal for this age group, but it is increasingly likely (with increasing age) that a young person will understand the activity and be able to give informed consent, or that the activity is mutually agreed.  Sexually active young people in this age group should still be assessed according to the factors set out in paragraphs 21.24 to 21.26 and any concerns referred to children’s social care.  Within this age group, the younger the child(ren) and/or the wider the age gap the stronger the presumption that sexual activity will be a cause for concern.

Young People Aged Between 16 and 17 years old.

21.32 Although sexual activity does not usually involve a criminal offence, and young people in this age group are considered able to give informed consent, they are still children under the terms of the Children Act 1989 and fall within the remit of the child protection procedures.  They may be considered children in need and can be victims of sexual crime.

21.33 In addition to offences of rape and indecency, the law now protects young people including 16 and 17 year olds from exploitation by adults who are in a 'position of trust' (e.g. teachers, health workers or social care staff) or family members as defined by the Sexual Offences Act 2003.

Identifying Adults and Young People who may be abusers

21.34 There is a small number of young adults and young people who form sexual relationships with a series of other young people.  Each relationship in isolation may appear unique and consensual.  It may only become apparent over time that there has been deliberate targeting and exploitation.

21.35 For this reason the police and children’s social care data bases record the names of both people involved in a relationship.  It is helpful if all agencies seek to identify the full names and dates of birth of both young people where concerns are identified.

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Problem Resolution

21.36 Given the nature of the issues involved and the conflicting imperatives described in paragraph 21.2, it is likely that there will be differences of view about what should happen in individual cases.  These differences should be discussed openly and honestly.  Where they cannot be resolved, the case should be referred to managers, as in Chapter 23: Resolution of Professional Disagreements in Work Relating to the safety of Children.

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In reaching judgements about the situation, deciding whether and what information to share and what action to take the following should be considered:

1. As defined in Section 17 of the Children Act 1989

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