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Contents

1. Introduction
2. Legal Context Sexual Offences Act 2003
3. Assessing Risk
4. Confidentiality
5. Information Sharing
6. Actions to be Taken if Risks/Concerns are Identified
   
   Further Information

1. Introduction

The guidance provides a framework for assessing the risk of significant harm to sexually active young people and is designed to guide the response of all professionals who have a responsibility for children within the statutory, private or voluntary sector within Hertfordshire who come into contact with children and young people under the age of 18 who are sexually active in a relationship that appears consensual.

The guidance has been devised with the understanding that most young people under the age of 18 will have an interest in sex and sexual relationships. It is designed to assist those working with children and young people to identify where these 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 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.

The guidance is gender neutral and applies to all children and young people under the age of 18 whatever their sexual orientation.

2. Legal Context Sexual Offences Act 2003

2.1 Young people under the age of 13

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 a risk of significant harm to the child.

In all cases where the sexually active young person is under the age of 13, a full risk assessment must be undertaken. All cases MUST be discussed with the safeguarding children lead of the organisation and referred to children’s social care (see Contacts and Referrals Procedure).

2.2 Young people between 13 and 16 years old

The Sexual Offences Act 2003 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 need assessed using the Risk Assessment Tools (Flow chart and Form). Discussion with the safeguarding children lead will depend on the level of risk/need assessed by those working with the young person.

2.3 Young people between 17 and 18 years old

It is an offence for a person to have a sexual relationship with a young person if they hold a position of trust or authority in relation to them. Positions of trusts are defined in section 21 and 22 of the Children’s Act (2004) e.g. persons in educational establishments, residential settings, or where duties involve regular unsupervised contact of children in the community. Allegations of this nature must be referred to a Designated Officer (formerly known as LADO).

2.4 Young people with Mental Health Issues

The Sexual Offences Act 2003 recognises the rights of people with mental health issues to full life, which includes a sexual life, there is however a duty to protect them from abuse and exploitation.

3. Assessing Risk

3.1	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. Where applicable see: Under 16 years sexually active risk assessment form.
3.2	Indicators of risk of harm
	In order to determine whether the relationship presents a risk to the young person, the following factors should be considered. This list is not exhaustive and other factors may need to be taken into account: Whether the 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); The nature of the relationship between those involved, particularly if there are age or power imbalances, which can occur through difference in seize, age and development; Whether overt aggression, coercion or bribery was involved including misuse of substances/alcohol as a disinhibitor; Whether the young person’s own behaviour, for example through misuse of substances, including alcohol, places them in a position where they are unable to make an informed choice about the activity; What the young person in the relationship’s living circumstances are, whether they are attending school; Any attempts to secure secrecy by the sexual partner beyond what would be considered usual in a teenage relationship; If accompanied by an adult, does the relationship give you any cause for concern? If the young person has a learning disability, mental disorder or other communication difficulty; Whether the young person denies, minimises or accepts concerns; Whether methods used to secure compliance and/or secrecy by the sexual partner are consistent with behaviours considered to be grooming. 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/young person through the internet etc in order to abuse the child/young person.
3.3	Power imbalances
3.3.1	Sexual abuse and exploitation of a child/young person involves an imbalance of power. The assessment should seek to identify possible power imbalances within a relationship.
3.3.2	The larger the gap between those involved the greater the need to assess the power balance. If the age gap is greater than 4 years for those under 16 years old, the case should be discussed with the agency’s child protection lead. Gender, sexuality, race and levels of sexual knowledge may also be used to exert power.
3.3.3	There may also be an imbalance of power if the young person’s sexual partner is in a position of trust in relation to them i.e. teacher, youth worker, carer as defined by the Sexual Offences Act 2003.

4. Confidentiality

4.1	Young people have a right to confidentiality of personal information unless it compromises the rights and safety of others or themselves. 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.
4.2	There may be times when confidentiality has to be breached to ensure that the young person receives the protection, treatment and support they need. In such circumstances the young person needs to know why the information is being shared, and should be supported in the process.
4.3	Decisions by health, and other professionals not to share information should be informed by Fraser guidelines that the child/young person: 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.

5. Information Sharing

5.1	Sharing information is vital for early intervention to ensure that young people with additional needs get the services they require and to protect them from suffering significant harm. The safety and welfare of young people must always be considered when making decisions on whether to share information.
5.1.1	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.
5.1.2	It is important that all decisions are undertaken with full professional consultation, never by one person alone. All decisions and the reasons for theses must be clearly recorded.
5.2	Sharing information with parents and carers
5.2.1	Decisions to share information with parents and carers will be taken using professional judgement, consideration of Fraser guidelines and in consultation with the multi-agency safeguarding children procedures.
5.2.2	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 the parents’ and carers’ ability and commitment to protect the young person.
5.2.3	Given the responsibility that parents have for the conduct and welfare of their children, professionals should encourage the young person, at all points, to share the information with their parents and carers wherever safe to do so.

6. Actions to be Taken if Risks/Concerns are Identified

6.1	Whenever there is reasonable cause to suspect that a child is suffering, or likely to suffer significant harm, a referral to children’s services must be completed.
6.2	Families First
6.2.1	If there are concerns about the welfare of child/young person whose needs are unclear, or the support of more than one agency is required the practitioner involved should consider completing a Families First Assessment.

7. Abuse through Sexual Exploitation

7.1

If there are concerns that the child or young person may be at risk of abuse through sexual exploitation including creating/exchanging images, grooming etc through the internet, a referral to children’s social care and the HALO team in accordance should take place (see Contacts and Referrals Procedure).

7.2

Levels of Sexual Harassment and Abuse in Education Settings: The Review of Sexual Abuse in Schools and Colleges (Ofsted) identified substantial levels of sexual harassment and online sexual abuse for both girls (90%) and boys (nearly 50%). Nevertheless, that in a number of schools this went unreported as a result of the school’s ‘culture‘. A part of this appeared to be that children felt they would not be listened to or be believed; they would be ostracised by peers, and because once it was discussed, (the children) feared the process would be out of their control. Also, that staff were generally not aware and did not countenance that this could happen at their school. Keeping Children Safe in Education highlights that, ‘Sexual violence and sexual harassment can occur between two children of any age and sex, from primary through to secondary stage and into colleges. It can occur through a group of children sexually assaulting or sexually harassing a single child or group of children. Sexual violence and sexual harassment exist on a continuum and may overlap; they can occur online and face to face (both physically and verbally) and are never acceptable. It notes that all staff working with children are advised to maintain an attitude of ‘it could happen here’ and to understand that, as a result of pupil’s reluctance to refer themselves, they should act on third-party information.

Further Information

Review of Sexual Abuse in Schools and Colleges (Ofsted)

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