Working with Sexually Active Children and Young People Under the Age of 18

This procedure has been devised with the understanding that some young people under the age of 18 (but predominantly between 16 and up to 18) will have an interest in sex and sexual relationships, and that some may require support and guidance during this phase to ensure any risk of harm is reduced.

It is designed to assist those working with children and young people under the age of 18 to understand legislation and good practice, and to identify where there may be an abusive context to a relationship and when children and young people may need the provision of protection or additional services. It is important that everyone who works with children and young people can distinguish developmentally typical sexual behaviour from sexual behaviours that are problematic or harmful.

This enables an appropriate response and provides CYP with the right protection and support. There are specific sections which deal with sexual activity with children under the age of 13; sexually active young people aged 13 to 16 years old and young people aged 16 to 18 years old.

Sexual activity refers to a range of intimate sexual activities that take place with another person. Being sexually active does not just mean penetrative sex (penis in vagina or anus) has taken place. It also includes a variety of sex acts, including oral sex and manual sex. This definition can also be extended to include technology-based activities such as watching porn or taking/sharing nudes.

Please see Sexual development and behaviour in children (NSPCC Learning) for further understanding on how children and young people develop sexually and what can constitute as being harmful or problematic for different age groups.

The sexual behaviour of CYP can be conceptualised as a continuum of behaviour (Hackett, 2010). Hackett's continuum presents sexualised behaviours as a range from 'normal' to 'inappropriate', 'problematic', 'abusive', and 'violent'. See Understanding sexualised behaviour in children (NSPCC Learning).

This procedure is based on balancing the rights of the child with the core principle that the welfare of the child or young person is paramount; it emphasises the need for practitioners to work together in identifying and assessing when a child or young person is or has engaged in sexual activity.

The Sexual Offences Act 2003

The following information, based on the Sexual Offences Act 2003, provides an outline of the law in relation to children and young people under the age of 18 years old.

The Sexual Offences Act 2003 does make provision for young people, of any age, to be offered confidential professional advice on contraception, condoms, pregnancy and abortion.

The Act states that a person is not guilty of aiding, abetting or counselling a sexual offence against a child where s/he is acting for the purpose of:

• Protecting a child from pregnancy or sexually transmitted infection;
• Protecting the physical safety of a child;
• Promoting a child's emotional well-being by the giving of advice.

This exception, in statute, covers not only health practitioners, but anyone who acts to protect a child, for example teachers, school nurses, personal advisers, youth workers, social workers and parents.

Confidentiality and information sharing

The Sexual Offences Act 2003 does not affect the duty of care and confidentiality of health and social care practitioners to children and young people 13 up to 16 years old. Young people place great importance in confidentiality, however, absolute confidentiality cannot be guaranteed and practitioners should always explain to young people at the earliest appropriate point that there may be some circumstances where their needs (or the needs of others) can only be safeguarded by sharing information with others. This discussion with the young person may prove useful as a means of emphasising the gravity of some situations.

Decisions to share information will be taken using professional judgement, consideration of Fraser guidelines, and mental capacity, consideration of the child/young persons circumstances, and their ability to appreciate implications and risks to themselves and others. Practitioners should in consultation with the child/young person formulate an appropriate plan to define the best way forward. (See Section 5, Young Persons consent to sexual health advice, support and guidance)

Fraser Competence describes a child's capacity to give consent in more general terms and could relate to their competence to permit the sharing of confidential information. Each child and young person is an individual and their "Fraser competence" would depend on factors including their age, development and capacity to demonstrate an understanding of the issue under discussion and the concept of informed consent. Fraser competence should be reassessed at every contact. A child who has capacity to understand and make their own decisions, may give (or refuse) consent to sharing information. Practitioners need to take account of the views of a "Fraser Competent" young person when considering the need to share confidential information with colleagues.

Mental Capacity

Under the Mental Capacity Act a young person of 16 and above, who has capacity to understand and make their own decisions, may give (or refuse) consent to sharing information. Practitioners should be mindful of their responsibilities to safeguard the child when considering the views of younger children or those where there are concerns about their capacity.

If a decision is made to share information without the child/young person's consent, where there is a clear likelihood of significant harm to the child and/or other children, the decision and the reasons for doing so should be clearly recorded.

Anyone concerned about the sexual activity of a young person or in cases where a practitioner has concerns that a relationship is likely to cause significant harm to a child or young person they should, where possible, discuss the case with line manager or safeguarding lead in your organisation. All discussions should be recorded, giving reasons for action taken and who was spoken to.

In some cases Risk Factors may be identified and  action may need to be taken to safeguard the welfare of a young person (see Making a Referral to Social Care Procedure).

If there are concerns that the child or young person may be at risk of abuse through sexual exploitation, trafficking / modern slavery, a referral to Children's Social Care must be made without delay. See Children at Risk of Exploitation (CRE) Procedure.

When a referral is received by Children's Social Care a Strategy Discussion/Meeting should be undertaken, informed by the assessment undertaken using this procedure and, in the majority of cases, may be largely for the purposes of consultation, information sharing and decision making.

Sharing Information with Parents and Carers

Decisions about sharing information with parents and carers can be difficult and Practitioners should encourage the young person, at all points, to share information with their parents and carers wherever safe to do so. The views of the child/young person about how, when and who may be involved in sharing the information with their parents/ carers should be considered carefully. The decision. about information sharing should not be taken by one practitioner in isolation and could be discussed with the safeguarding lead within the agency. The decision will rest on whether there is a likelihood of Significant Harm.

The provision of confidential contraceptive services is an established principle. While practitioners should always encourage young people to tell their parents/ carers that they are having sex, the practitioner will not themselves pass this information to parents/ carers. However, practitioners may share information with other agencies if the child consents or if there is a public interest, such as where there is a clear likelihood of Significant Harm to the child or other children.

In some circumstances it may be necessary for Children's Social Care to undertake an assessment that will involve discussions with the parents/ carers of a young person who has sought contraceptive advice. Decisions to share confidential information with parents/ carers will be taken using professional judgement, consideration of Fraser guidelines and in consultation with these procedures.

Parents/ carers may also request services and opportunities to work in partnership with practitioners to address concerns they have about the sexual activity of their own child. They may be anxious about the suitability of their child's relationship and in some cases this may involve sexual exploitation and/or the misuse of drugs and alcohol. In such circumstances, these procedures should be followed and suitable legal information provided as appropriate. (See Providing Early Help Procedure, Engaging with Families and Sharing Information).

All young people, regardless of gender, or sexual orientation who are believed to be and/or have been engaged in, or planning to be engaged in, sexual activity must have their needs for relationships and health education, support and/or protection assessed by the agency involved. Please refer to the flow chart in Appendix: Working with Sexually Active Children and Young People Under 18 to aid your assessment.

When a practitioner becomes aware that a young person is likely to be or has been sexually active, using a risk assessment tool and relevant Derby and Derbyshire Safeguarding Children Partnership procedures and other relevant best practice guidance maybe from health or education, an assessment (for example the Lucy Faithful foundation – Stop it Now) can assist practitioners in their assessment of risk.

An assessment should be made of the young person's physical and emotional health, and their education and safeguarding needs. This must include an assessment of their ability to give informed consent. Dependent on the risks identified this may lead to an Early Help Assessment or a safeguarding referral.

If the following vulnerability factors are also present the risk is increased:

• History of previous abuse;
• Underlying medical conditions;
• Mental health issues;
• A learning disability which impairs a person's ability to consent, communication difficulties, low self esteem and/or an imbalance of power.

The following factors should be considered when assessing whether a child or young person is at risk of harm because of involvement in sexual activity. No child under the age of 13 is able to consent to any sexual activity (Sexual Offences Act 2003).

• The history of the young person, frequency of contact with services and any factors that may make them vulnerable;
• Where there has been a disclosure of sexual activity, particularly if non consensual;
• Reports of domestic abuse or violence within the sexual contact/relationship;
• 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;
• The presence of a sexually transmitted infection (STI) and/or repeated STI or requests for repeat pregnancy tests and/or a confirmed pregnancy;
• What is known about the child’s living circumstances or background or ethnicity;
• Whether the young person is being isolated from family and friends;
• Female Genital Mutilation (FGM), whether there is any genital injury to self or other including tattooing and branding;
• Whether any attempts to secure secrecy have been made by the sexual partner, beyond what would be considered usual in a teenage relationship;
• Age imbalance - in particular where there is a significant age difference;
• Whether there is any sexual harassment;
• The level of maturity and understanding of the child; Whether the young person is competent to understand and consent to the sexual activity they are involved in;
• The nature of the relationship, particularly if there are age or power imbalances, overt aggression , such as threats of, or sexual acts used as punishment or retribution;
• The partner is in a position of trust and/or authority;
• Sexual activity with family, including wider family networks;
• Familial child sex offences;
• Behaviour of the child i.e. Withdrawn, anxious;
• The misuse of substances as a dis-inhibitor can make a child particularly vulnerable;
• Use of drugs to prolong and/or enhance sexual activity i.e. "CHEM" sex;
• Group sex;
• Whether the child denies, minimises or accepts concerns;
• Whether the young person is displaying sexually aggressive/exploitive behaviour;
• Sexual degradation / humiliation of self or others;
• Displays a pre-occupation with sex which interferes with daily functioning, uses developmentally inappropriate sexually explicit language;
• Demonstrates unacceptable and concerning attitudes and values towards sexual relations;
• Whether the sexual partner/s is known by one of the agencies;
• Peer on peer abuse. While the phenomena of peer-on-peer abuse can affect children of any age, research shows that it is primarily concerned with children from the age of 10 upwards. In most cases peer-on-peer abuse seems to occur at an age when young people socialise, form relationships with a reduction of adult supervision. Young children living in care are considered to be more vulnerable to being abused by their peers;
• Seeking adult social networking sites and accessing web based relationships;
• Taking and distributing naked or sexually provocative images of self or others and sexting;
• Accessing and/or being shown pornography;
• Whether or not the young person is attempting to or exposing their body and/or genitals. Being forced to expose themselves to others;
• Masturbating in public and/or on social media / webcam;
• Arranging to meet with an on-line acquaintance in secret;
• Is the sexual contact/partner is known by the agency as having other concerning relationships with other young people? Is the sexual contact/partner or young person known for any previous sexual offence?
• Sexual contact with animals;
• Whether coercion, manipulation or bribery is involved including misuse of substances/alcohol as a dis-inhibitor, or sex has been used to gain favours (for example swapping sex for cigarettes, clothes, electrical goods, trainers, alcohol, drugs etc.), or the young person has been involved in sexual activity to meet their basic needs for survival, such as a bed for the night/food/clothing;
• Does the behaviour of the sexual contact/partner raise concerns that they may be grooming the young person or Child Sexual Exploitation and Trafficking/Modern Slavery need to be considered. See Child at Risk of Exploitation (CRE) Risk Assessment, (see Documents Library, Assessment Tools);
• Uncharacteristic and risk related behaviour, e.g. sudden and/or provocative changes in dress, withdrawal from friends, mixing with new or older people, having more or less money than usual, going missing.

Anyone concerned about the sexual activity of a child or young person should initially discuss this with the practitioner or specialist unit in their agency responsible for child protection. All discussions should be recorded and the Child at Risk of Exploitation (CRE) Risk Assessment may be completed, giving reasons for action taken and who was spoken to, as support for the practitioner decisions made. It is important that all decision-making is undertaken with full practitioner consultation, never by one person alone.

In cases of concern, when sufficient information is known about the sexual partner/s, the practitioner should check with other agencies, particularly the police to see what information is known about them.  When requesting information from the Police, the request will be reviewed and may be responded to, if deemed lawful, necessary, relevant and proportionate. If the Police deem the request is not lawful, they will not respond.

All decisions made should be carefully documented including where a decision is made not to share information or make a Referral, this should include a clear rationale for decisions made. 

In circumstances where there is a difference of professional opinion see Derby and Derbyshire Multi Agency Dispute Resolution and Escalation Policy (see Documents Library, Guidance Documents).

Power Imbalance and consent

In assessing the nature of any particular behaviour, it is essential to look at the facts of the relationship, and an assessment must also include the partner. Sexual abuse and sexual exploitation of a child or young person involves an imbalance of power or control and/or coercion.

A child or young person's ability to consent is impaired if they do not have the freedom, capacity or choice to act, e.g. if they are given alcohol, drugs or if there are learning needs which mean they cannot truly consent. 

Power imbalances are very important and can occur through differences in size, age and development (including cognitive development) and where gender, sexuality, race and levels of sexual knowledge are used to exert such power. Of these, age may be a key indicator, for example a 15 year old and a 20 year-old. There is also an imbalance of power if the young person's sexual contact/partner is in a position of trust in relation to them, for example: a teacher, youth worker, carer etc. It is an offence for an adult in a position of trust or authority to engage in sexual activity with a young person (Sexual Offences Act, 2003). When it has been identified that a young person is at risk from an adult in position of trust or authority, the Allegations against Staff, Carers and Volunteers Procedure should be initiated.

Section 74 of the Sexual Offences Act informs that the statutory definition of consent is "if he agrees by choice and has the freedom and capacity to make that choice", it should be considered whether the complainant has capacity to make a choice about whether or not to take part in the sexual activity at the time in question and whether he/she was in a position to make that choice freely and was not constrained in any way

Whereby consent to sexual activity is made within the context of limited alternative 'choices', constrained choices or survival strategies need to be understood by professionals. A young person cannot give true consent if there is:

• Use of fear;
• Use of violence;
• Being unlawfully detained;
• Being under the influence of substances;
• Altered state of consciousness;
• Difficulty communicating due to physical or learning disability;
• Subject to exploitation.

University of Bedfordshire and Research in Practice report that a homeless 17-year-old may ‘choose’ to exchange sex for a place to stay, a 14-year-old may ‘choose’ to engage in sexual activity for substances as a way of coping with abuse and a 16 year old may ‘choose’ to leave a placement (where they are physically safe) and get in a car with several men who they suspect are going to rape them, as they have been told if they don’t, their younger sibling will be raped. Understanding the wider contextual safeguarding is paramount to any risk assessment and consideration of constrained choices.

Young People with disabilities

If the young person has a learning need, mental health condition or a communication difficulty, they may not be able to communicate effectively that they are, or have been abused. This requires practitioners to undertake a robust assessment of the young person's communication need. Practitioners should be aware that the Sexual Offences Act 2003 recognises the rights of people with a mental health condition to a full life, including a sexual life. However, practitioners have a duty to protect them from abuse and exploitation.

At an early stage where there are concerns that a child or young person has been involved in sexual activity or they show associated behaviours and further information is needed to clarify risk, relevant checks must be undertaken with other professionals, including Police, Children's Social Care and Health to assist with the risk assessment. While a Referral to Children's Social Care may prevent a young person from engaging or making a further disclosure it is important to safeguard the child or young person from further Significant Harm.

Where it appears that a child may be suffering or likely to suffer Significant Harm and/or that there is a public safety issue, information should be shared on a need to know basis. If you are unsure about information sharing please discuss the case with your line manager or the safeguarding lead in your organisation. The refusal of a child to consent to the sharing of such information should not prevent the information being shared where professional judgement has identified that there may be or is a likelihood of Significant Harm to the child or other person. The reasons for doing this should be shared with the child wherever possible.

Fraser Competence – under the age of 16 - Guidelines on providing advice and treatment.

It is considered good practice to use the Fraser Guidance and it applies specifically to advice and treatment about contraception and sexual health. It may be used by a range of healthcare professionals working with under 16-year-olds, including doctors and nurse practitioners. Following a legal ruling in 2006, Fraser guidelines can also be applied to advice and treatment for sexually transmitted infections and the termination of pregnancy. 

Practitioners using the Fraser guidelines should be satisfied of the following:

• The young person understands the advice that is being given;
• The young person 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, for example: 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.

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

Any young person or girl under the age of 16 who is pregnant, must be offered specialist support and guidance by the relevant services. Any child protection concerns must be discussed with the safeguarding children lead. See Derby and Derbyshire Multi-Agency Protocol for Pre-birth Assessments and Interventions (Documents Library, Protocols).

Any child/young person who is subject to CSE or FGM may require continued support. These services will also be a part of the assessment of the young person's circumstances.

Consequences of the sexual activity including pregnancy/STI/sexual activity/ sexual health/on line harms/abuse etc to be supported and agencies that will support around this

If a young person has disclosed sexual activity, any direct or indirect consequence of the sexual activity must be acknowledged and supported. This includes the risk of pregnancy, sexually transmitted infections, family conflict, sharing of sexually explicit images etc. Referrals to local and/ or national specialist agencies may be necessary:

Local:

• Derbyshire Community Health Services (Your Sexual Health Matters);
• Supporting Victims of Sexual Violence (SV2);
• Safe and Sound;
• East Midlands Children and Young People's Sexual Assault Service (EMCYPSAS);
• Derbyshire LGBT+;
• Derbyshire Domestic Abuse 24/7 Helpline 08000 198 668.

National:

• Safe Speak;
• Childline;
• The Mix - Essential support for under 25s;
• Child Exploitation and Online Protection (CEOP Safety Centre);
• Shorespace.

A child under 13 is not legally capable of consenting to any form of sexual activity on or offline. Sexual activity with a child under the age of 13 is illegal, as under the law s/he is not considered able to consent to such behaviour. Any type of sexual activity therefore, is considered as risk of Significant Harm to the child (Sexual Offences Act 2003).

Cases of children under 13 should always be discussed with a safeguarding lead within the organisation. Where the allegation concerns penetrative sex, or if other intimate sexual activity occurs with another person either on or offline, there would always be reasonable cause to suspect that a child, whether girl or boy, is suffering or is likely to suffer Significant Harm.

• The case must be reported to Children's Social Care and Police and a Strategy Discussion/Meeting held. This should involve Children's Social Care, Police Health and relevant agencies, to determine the child's welfare and, if required, plan rapid action;
• Appropriate actions must be taken to preserve any evidence and support disclosure; a referral must be made for examination to East Midlands Children and Young People’s Sexual Assault Service EMCYPSAS Strategy and Patient Pathway via Childrens Social Care or Police;
• Appropriate actions must be taken to prevent Sexually Transmitted Infections and pregnancy;
• Risk of Child Sexual Exploitation must be considered (See CSE Toolkit - Documents Library, Assessment Tools);
• The risk of significant harm posed when children under the age of 13 are exposed to other forms of non-penetrative sexual activity. The concern is not about age appropriate exploratory activity but about exposure to inappropriate material or activities;
• There should be particular concern about exposure to technologies/social media (for example: abuse via the internet, mobile devices) and concerns about grooming and using these means for sexual exploitation.

In circumstances where a child under 13 requests or is in need of emergency contraception from a service out of normal office hours, the worker should ensure that:

• Arrangements are made for emergency contraception to be given to the young person (within 72 hours) by a health professional/pharmacist;
• A referral in all cases is made to Children's Social Care, including Out of Hours Service (see Making a Referral to Social Care Procedure).

Following a disclosure of pregnancy a Strategy Discussion/Meeting with the Police, Health and/or other agencies will need to be undertaken. At this stage an assessment of the mother and unborn baby should be commenced to identify their needs and plan for appropriate services. See Derby and Derbyshire Multi-Agency Protocol for Pre-birth Assessments and Interventions (see Documents Library, Protocols). Separate Social Workers for the mother and the unborn baby should be considered, particularly if the mother is subject to a Child Protection Plan or is Looked After.

The Sexual Offences Act 2003 reinforces that, although 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 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 up to 16 as to whether there should be a discussion with other agencies and whether a referral should be made to Children's Social Care (see Making a Referral to Social Care Procedure). Within this age range, the younger the child, the stronger the presumption must be that sexual activity will be a matter of concern.

Cases of concern should be discussed with the safeguarding lead within your organisation and a referral made to Children's social Care if required. Where confidentiality needs to be preserved, a discussion can still take place as long as it does not identify the child (directly or indirectly). Consent should be fully explored with this age group to ensure the young person had both the capacity and choice to engage in sexual activity – the absence of either demonstrates a risk of significant harm through abuse or sexual exploitation a Strategy Discussion/Meeting should be held to discuss appropriate next steps. Again, all cases should be carefully documented including where a decision is taken not to share information.

Where an agency involved knows that a young person of 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.

Although sexual activity in itself is not an offence for young people aged 16 and over, young people under the age of 18 are still offered the protection of the Safeguarding Children Procedures under the Children Acts 1989/2004.

Sexual activity involving a 16 up to 18 year old, though unlikely to involve a criminal offence, may still involve harm or the likelihood of harm. Consideration still needs to be given to issues of child sexual exploitation and whether consent was understood and given to sexual activity by the young person. Practitioners should still bear in mind the considerations and processes outlined in this guidance in assessing that risk, and should share information as appropriate.

Consideration still needs to be given to issues of sexual exploitation and the abuse of power in circumstances outlined above. See Children at Risk of Exploitation (CRE) Procedure.

Young people can be subject to sexual offences such as rape and assault. In such circumstances practitioners should discuss the case with their line manager or designated lead for Child Protection and consider the need to make a referral to the Police and/or Children's Social Care. Consideration should be given for a referral to EMCYPSAS Strategy and Patient Pathway, and support services in Section 6, Continuing Support.

See The Legal Framework Procedure.

Stop it Now! (See: www.stopitnow.org.uk) - Stop it Now! UK and Ireland is a child sexual abuse prevention campaign helping adults play their part in prevention by providing sound information, educating members of the public, training those who work with children and families and running a free confidential helpline.

Parents Protect (See: www.parentsprotect.co.uk) - An information and resources website that aims to raise awareness about child sexual abuse, answer questions and give adults the information advice, support and facts that they need to help protect children.

NSPCC PANTS (See: www.nspcc.org.uk/pants) - talking PANTS, parents and carers have a simple way to talk to children about staying safe from sexual abuse. It sets out some simple rules to remember, for example they should tell a trusted adult about their worries. There are also accessible versions of the guide for children and parents with learning disabilities or autism; and for keeping deaf children safeBy.

Barnardos (See: www.barnardos.org.uk/who-we-are) - information regarding different areas of keeping children safe. The Child Sexual Exploitation section is intended for use by everyone who has questions in relation to CSE. In the 'Spot the signs' section, there are leaflets which can be downloaded for parents, carers and teenagers.

NSPCC Responding to children who display sexualised behaviour guide

NSPCC Gillick Competence and Fraser Guidelines

Click here to view the Working with Sexually Active Children and Young People Under 18 Flowchart.