8.14 Working with Sexually Active Young People under the age of 18 |
This guidance was endorsed by Peterborough Safeguarding Children Board in December 2006 and further updated in March 2007.
Contents
- Assessment
- Process
- Young people under the age of 13
- Young people between 13 and 16
- Young People between 17 and 18
- Sharing Information with Parents and Carers
Appendix 1: Additional Information
Appendix 2: Best Practice Guidance for Doctors and other Health Professionals
Appendix 3: Flow Chart for Professionals Working With Sexually Active Under 18’s
Appendix 4: Risk Assessment Tool
Introduction
This 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.
1. Assessment
| 1.1 | All young people 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. This assessment must be carried out using the Risk Assessment Tool (see Appendix 4, Risk Assessment Tool) and in accordance with:
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| 1.2 | In assessing the nature of any particular behaviour, it is essential to look at the facts of the actual relationship between those involved. 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 –
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| 1.3 | 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, or have been abused, or subjected to abusive behaviour. Staff need to be aware that the Sexual Offences Act 2003 (see Appendix 1, Additional Information) 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. |
| 1.4 | 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. These assert that sexual health services can be offered without parental consent providing that:
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2. Process
| 2.1 | 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 needs of the young person 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. |
| 2.2 | On each occasion that a young person is seen by an agency, the Risk Assessment must be completed or updated. Then consideration should be given as to whether their circumstances have changed or further information has been given which may lead to the need for referral or re-referral. |
| 2.3 | In some cases urgent action may need to be taken to safeguard the welfare of the young person. In these circumstances, there must be an immediate referral to Children’s Social Care or the Police Central Referral Unit. 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 must initially discuss this with the person in their agency responsible for child protection. There may then need to be a further consultation with Children’s Social Care Intake and Assessment or the Police Central Referral Unit. In many cases, it will not be in the best interests of the young person for criminal or civil proceedings to be instigated. However, Police and Children’s Social Care and other agencies may hold vital information that will assist in any clear assessment of risk. All discussions should be recorded, giving reasons for action taken and who was spoken to. It is important that all decision making, regarding concerns, is undertaken with full professional consultation, never by one person alone. |
| 2.4 | If you have concerns that the young person may be at risk of sexual exploitation through prostitution, please refer to Protecting Children in Specific Circumstances Procedure: Children Involved in Prostitution (starting at paragraph 7.32) Peterborough Inter Agency Safeguarding Children Procedures. |
| 2.5 | Following any referral to Children’s Social Care and after a Strategy Discussion with the Police and/or other agencies there may be one of these responses:
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| 2.6 | The outcome of the referral will be formally fed back to the referring agency and during this process agencies must continue to offer the service and support to the young person. |
| 2.7 | Any 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 child protection lead. |
| 2.8 | When a girl under 13 is found to be pregnant, a referral to Children’s Social Care must be made and the relevant action will be taken. |
3. Young people under the age of 13
| 3.1 | Under the Sexual Offences Act 2003, children under the age of 13 are considered of insufficient age to give consent to any form of sexual activity. Therefore penetrative sex with a child under the age of 13 is classed as rape. |
| 3.2 | In all cases where the sexually active young person is under the age of 13, a full risk assessment must be undertaken using the Risk Assessment Tool (see Appendix 4, Risk Assessment Tool). Each case MUST be discussed with the child protection lead and a decision will be made regarding a referral to Intake and Assessment (Children’s Social Care) and Police Central Referral Unit. In order for this to be meaningful, the young person will need to be identified, as will their sexual partner if details are known. |
| 3.3 | A decision not to refer can only be made following a case discussion with the child protection lead within the agency involved. When a referral is not made, the professional and agency concerned is fully accountable for the decision and a good standard of record keeping must be made, including the reasons for not making the referral. This decision will only be taken in exceptional circumstances. |
4. Young people between 13 and 16
| 4.1 | 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. |
| 4.2 | Sexually active young people in this age group will still have to have their need assessed using the Risk Assessment Tool (see Appendix 4, Risk Assessment Tool). Discussion with the child protection lead will depend on the level of risk/need assessed by those working with the young person. |
| 4.3 | This difference in procedure reflects the position that, whilst sexual activity under 16 remains illegal, young people under the age of 13 are not capable to give consent to such sexual activity. |
5. Young people between 17 and 18
| 5.1 | Although sexual activity in itself is no longer an offence over the age of 16, young people under the age of 18 are still offered the protection of child protection procedures under the Children Act 2004. Consideration still needs to be given to issues of sexual exploitation through prostitution and abuse of power in 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 in the Sexual Offences Act 2003. |
6. Sharing information with parents and carers
| 6.1 | 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 (see Recognising and Responding to Concerns about the welfare of a Child Procedure: Practice Guidance on Information Sharing - Peterborough safeguarding Children 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 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 the young person, at all points, to share the information with their parents and carers wherever safe to do so. |
| 6.2 | All decisions must be clearly documented on the Risk Assessment. |
| 6.3 | This guidance 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. |
Appendix 1: Additional Information
Definitions
Sexual Grooming
Section 15 of the Sexual Offences Act 2003 makes it an offence for a person (A) aged 18 or over to meet intentionally, or to travel with the intention of meeting a child under 16 in any part of the world, if he has met or communicated with that child on at least two earlier occasions, and intends to commit a “relevant offence” against that child either at the time of the meeting or on a subsequent occasion. An offence is not committed if (A) reasonably believes the child to be 16 or over.
The section is intended to cover situations where an adult (A) establishes contact with a child through for example, meetings, conversations or communications on the internet and gains the child’s trust and confidence so that he can arrange to meet the child for the purpose of committing a “relevant offence” against the child.
The course of conduct prior to the meeting that triggers the offence may have an explicitly sexual content, such as (A) entering into conversations with the child about sexual acts he wants to engage him/her in when they meet, or sending images of adult pornography. However, the prior meetings or communication need not have an explicitly sexual content and could for example simply be (A) giving swimming lessons or meeting him/her incidentally through a friend.
The offence will be complete either when, following the earlier communications, (A) meets the child or travels to meet the child with the intent to commit a relevant offence against the child. The intended offence does not have to take place.
The evidence of (A’s) intent to commit an offence may be drawn from the communications between (A) and the child before the meeting or may be drawn from other circumstances, for example if (A) travels to the meeting with ropes, condoms and lubricants.
Subsection (2)(a) provides that (A’s) previous meetings or communications with the child can have taken place in or across any part of the world. This would cover for example (A) emailing the child from abroad (A) and the child speaking on the telephone abroad, or (A) meeting the child abroad. The travel to the meeting itself must at least partly take place in England or Wales or Northern Ireland.
The Sexual Offences Act 2003
The Age of Consent
The legal age for young people to consent to have sex is still 16, whether they are straight, gay or bisexual. The aim of the law is to protect the rights and interests of young people, and make it easier to prosecute people who pressure or force others into having sex they don’t want.
For the purposes of the under 13 offences, whether the child consented to the relevant risk is irrelevant. A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.
Protecting people with a mental disorder
The act has created three new categories of offences to provide additional protection with a mental disorder.
- The Act covers offences committed against those who, because of a 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.
Children and Families:Safer from Sexual Crime – (The Sexual Offences Act 2003)
Although the age of consent remains at 16, the law is not intended to prosecute mutually agreed teenage sexual activity between two young people of a similar age, unless it involves abuse or exploitation. Young people, including those under 13, will continue to have the right to confidential advice on contraception, condoms, pregnancy and abortion.
Bichard Inquiry - Recommendation Number 12
“The government should reaffirm the guidance in ‘Working Together to Safeguard Children’ so that the Police are notified as soon as possible when a criminal offence has been committed, or is suspected of having been committed against a child - unless there are exceptional reasons not to do so”.
Working Together to Safeguard Children (2010)
Paragraph 2.103
“The police should be notified as soon as possible by local authority children’s social care wherever a case referred to them involves a criminal offence committed, or is suspected of having been committed, against a child. Other agencies should consider sharing such information. This does not mean that in all such cases a full investigation will be required, or that there will necessarily be any further police involvement. It is important, however, that the police retain the opportunity to be informed and consulted, to ensure all relevant information can be taken into account before a final decision is made”.
Additional References
Enabling young 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 (Department of Health July 2004)
What to do if you are worried a child is being abused Children’s Services Guidance (Joint publication from the Department of Health, Home Office, Office of the Deputy Prime Minister, Lord Chancellor, Department of Education and Skills).
Handling Allegations of sexual offences against children (Local Authority Social Services Letter LASSL (2004) 21/8/04)
Guidance on offences against children (Home Office Circular 16/2005)
Further Information Available From
Teenage Pregnancy Unit - Every Child Matters website
National Children's Bureau - Sex Education Unit
Department for Education website
Appendix 2 - Best Practice Guidance for Doctors and other Health Professionals
Summary
This revised guidance replaces HC (86)1/HC (FP) (86)1/LAC (86)3 which is now cancelled.
Doctors and health professionals have a duty of care and a duty of confidentiality to all patients, including under 16s.
This guidance applies to the provision of advice and treatment on contraception, sexual and reproductive health, including abortion.
Research has shown that more than a quarter of young people are sexually active before they reach 16.
Young people under 16 are the group least likely to use contraception and concern about confidentiality remains the biggest deterrent to seeking advice. Publicity about the right to confidentiality is an essential element of an effective contraception and sexual health service.
The Government’s ten year Teenage Pregnancy Strategy, launched in 1999, set a goal to halve the under 18 conception rate by 2010. This is a Department for Education and Skills Public Service Agreement jointly held with the Department of Health. Progress towards meeting local under 18 conception rate reduction targets is one of the NHS Performance Indicators for Primary Care Trusts (PCT).
The contribution of PCTs to improving young people’s access to contraceptive and sexual health advice is a key element of all local Teenage Pregnancy Strategies, linked to implementation of the Sexual Health and HIV Strategy, and is performance managed by Strategic Health Authorities.
The Sexual Offences Act 2003 does not affect the duty of care and confidentiality of health professionals to young people under 16.
Action
PCT commissioners and clinical governance leads should bring this guidance to the attention of all health professionals responsible for the care of young people in any setting. All services providing contraceptive advice and treatment to young people should:
(1 Wellings, K., Nanchahal, K., Macdowall, W., McManus, S., Erens, R., et al. (2001) Sexual Behaviour in Britain: early heterosexual experience. Lancet 358: 1843-50)
- Produce an explicit confidentiality policy making clear that under-16s have the same right to confidentiality as adults
- Prominently advertise services as confidential for young people under 16, within the service and in community settings where young people meet
- Health professionals who do not offer contraceptive services to under-16s should ensure that arrangements are in place for them to be seen urgently elsewhere.
- Directors of Children’s Services should ensure that social care professionals working with young people are aware of this guidance and the Teenage Pregnancy Unit Guidance ‘Enabling young people to access contraception and sexual health information and advice: the legal and policy framework for social workers, foster carers and other social care practitioners’.
Confidentiality
The duty of confidentiality owed to a person under 16, in any setting, is the same as that owed to any other person. This is enshrined in professional codes.
All services providing advice and treatment on contraception, sexual and reproductive health should produce an explicit confidentiality policy, which reflects this guidance and makes clear that young people under 16 have the same right to confidentiality as adults.
Confidentiality policies should be prominently advertised, in partnership with health, education, youth and community services. Designated staff should be trained to answer questions. Local arrangements should provide for people whose first language is not English or who have communication difficulties.
Employers have a duty to ensure that all staff members maintain confidentiality, including the patient’s registration and attendance at a service. They should also organise effective training, which will help fulfil information governance requirements
See ‘Confidentiality: protecting and providing information’, General Medical Council, London. 2004. Code of professional conduct, Nursing and Midwifery Council 2002.
An example of an effective training resource is ‘Confidentiality and young people: improving teenager’s uptake of sexual and other health advice’. This publication is endorsed by the Royal College of General Practitioners, the British Medical Association, the Royal College of Nursing and the Medical Defence Union.
Deliberate breaches of confidentiality, other than as described below, should be serious disciplinary matters. Anyone discovering such breaches of confidentiality, however minor, including an inadvertent act, should directly inform a senior member of staff (e.g. the Caldicott Guardian) who should take appropriate action.
The duty of confidentiality is not, however, absolute. Where a health professional believes that there is a risk to the health, safety or welfare of a young person or others which is so serious as to outweigh the young person’s right to privacy, they should follow locally agreed child protection protocols, as outlined in Working Together to Safeguard Children and Recognising and Responding to Concerns about the welfare of a Child Procedure: Practice Guidance on Information Sharing - Peterborough safeguarding Children Procedures.
In these circumstances, the over-riding objective must be to safeguard the young person. If considering any disclosure of information to other agencies, including the police, staff should weigh up against the young person’s right to privacy the degree of current or likely harm, what any such disclosure is intended to achieve and what the potential benefits are to the young person’s well-being.
Any disclosure should be justifiable according to the particular facts of the case and legal advice should be sought in cases of doubt. Except in the most exceptional of circumstances, disclosure should only take place after consulting the young person and offering to support a voluntary disclosure.
See also GMC Guidance for Doctors on Working with children and young people aged 0 – 18 years.
Duty of Care
Doctors and other health professionals also have a duty of care, regardless of patient age.
A doctor or health professional is able to provide contraception, sexual and reproductive health advice and treatment, without parental knowledge or consent, to a young person aged under 16, provided that:
- She/he understands the advice provided and its implications; and
- Her/his physical or mental health would otherwise be likely to suffer and so provision of advice or treatment is in their best interest.
However, even if a decision is taken not to provide treatment, the duty of confidentiality applies, unless there are exceptional circumstances as referred to above.
The personal beliefs of a practitioner should not prejudice the care offered to a young person. Any health professional who is not prepared to offer a confidential contraceptive service to young people must make alternative arrangements for them.
Copies can be obtained from Department of Health, PO Box 777, London SE1 6XH.
Good practice in providing contraception and sexual health to young people under 16
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 or abuse.
- 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 woman 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.
See also GMC Guidance for Doctors on Working with children and young people aged 0 – 18 years.
Sexual Offences Act 2003
The Sexual Offences Act 2003 does not affect the ability of health professionals and others working with young people to provide confidential advice or treatment on contraception, sexual and reproductive health to young people under 16.
The Act states that, a person is not guilty of aiding, abetting or counselling a sexual offence against a child where they are acting for the purpose of:
- Protecting a child from pregnancy or sexually transmitted infection
- Protecting the physical safety of a child,
- Promoting child’s emotional well-being by the giving of advice.
In all cases, the person must not be causing or encouraging the commission of an offence or a child's participation in it. Nor must the person be acting for the purpose of obtaining sexual gratification.
This exception, in statute, covers not only health professionals, but anyone who acts to protect a child, for example teachers, connexions personal advisers, youth workers, social care practitioners and parents.
Appendix 3 - Flow Chart for Professionals Working With Sexually Active Under 18’s
Click here to view Flowchart for Professionals Working WIth Sexually Active Under 18's
Appendix 4 - Risk Assessment Tool
Confidentiality/potential information sharing |
You should explain to children and young people at the onset, openly and honestly, what and how information will, or could be shared and why, and seek their agreement. The exception to this is where to do so would put that child/young person or others at increased risk of Significant Harm. |
Sexually active? |
Have they ever had intercourse in the past or at present? If yes: refer to Fraser guidelines and continue If no: continue risk assessment and give appropriate advice and support. Discuss link to cervical cancer, having multiple partners and possible abuse if appropriate. If not already discussed (when referring to Fraser Guidelines) use this opportunity to inform young person of their rights and responsibilities, such as legalities of sex under 13 and 16 and unprotected sexual intercourse. |
Likely to begin? |
How likely is the young person to become sexually active in the very near future? Discuss if activity is being planned. If young person tells you they are likely to have sex give appropriate advice and support (e.g. condom usage). |
Last sexual activity |
This will determine the need for emergency contraception or pregnancy test. The young person may not be aware of the risks. |
Last monthly period |
Discuss risk of pregnancy, irregular periods etc. |
Contraception used |
Any contraception that has been used in the past. This will determine risk of Sexually Transmitted Infections (STI) and suitability for that young person. |
STI risk |
Importance of condom use, statistics on STI’s. Discuss all aspects of risk, diagnosis, treatment and contact tracing if appropriate. |
Details of partner |
Obtain name and age if possible. Refer to risk factors if the relationship causes concern. |
End