Sexually active young people
This process applies to contact in the South West by any practitioner including health professional, youth worker, social worker, residential worker, Connexions advisor or voluntary agency worker with someone who is sexually active and under 18. This includes requests in non-NHS settings for emergency contraception; chlamydia screening or repeat issuing of condoms. It does not apply to condom distribution campaigns where there is no one-to-one consultation, nor does it apply to the sale of condoms.
It 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.
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 protection or the provision of additional services.
Practitioners must be clear that the main centre of our contact with the young person is their health and well-being and the protocol is based on the core principle that the welfare of the child or young person is paramount. It 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 and to minimise risks to potentially vulnerable young people. It recognises the requirement to respect an individual's legal rights to privacy and confidentiality.
All agencies, which have contact with children and young people, should use this protocol to develop and implement local guidance for their own staff.
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 facts of the actual relationship between those involved. This may require a level of assessment that may not be possible thorough a single contact with one practitioner.
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. Therefore a pharmacist issuing emergency contraception as a one-off will probably only gain some of the answers to the questions or prompts that the guidance proposes, whereas a GP for example may be more confident that they will see the young person again. As a result, the threshold for discussions with a designated staff, social services, or the police, is likely to be lower when the opportunity for further discussions between practitioner and young person is less likely.
Some of the answers to these questions may be gained over the course of several consultations. It is up to the professional to use their judgment as to how much information they can seek each time but full account must be taken of the potential risk to the child of delaying intervention.
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. Practitioners need to be aware that the Sexual Offences Act 2003 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 purpose of assessment is to ensure that the young person seeking advice is not being sexually exploited or suffering or at risk of suffering sexual abuse.
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 be needed to be taken into account -
The age of the child - sexual activity at a very young age is a strong indicator that there are risks to the welfare of the child (boy or girl) and possibly others.
Whether the young person is competent to understand and consent to the sexual activity they are involved in. The level of maturity and understanding of the child or young person.
The nature of the relationship between those involved, particularly if there are age or power imbalances. Power imbalances occur through differences in size, development and especially age. Gender, sexuality, race and levels of sexual knowledge may also be used to exert such power. 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 e.g. teacher, youth worker, carer etc.
What is known about the child's living circumstances or background, including any familial sexual offences.
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.
Whether any attempts have been made to secure secrecy by the sexual partner beyond what would be considered usual in a teenage relationship.
Whether the sexual partner is known by the agency as having other concerning relationships with similar young people. This presupposes that checks have been made with other agencies.
If accompanied by an adult, whether the relationship gives any cause for concern?
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'.
Whether sex has been used to gain favours, for example exchanging sex for goods; cigarettes, clothes, CDs, trainers, alcohol, drugs etc or shelter.
Whether 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. These hold that sexual health services can be offered without parental consent providing that;
The young person understands the advice that is being given.
The young person cannot be persuaded to inform or seek support from their parents, and will not allow the worker to inform the parents that contraceptive/protection, e.g. 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.
The degree of [Fraser] competence of a young person needs to be assessed on an individual basis and fully documented. This will vary with age, maturity and with the implications of the treatment or advice they are seeking. Young people under sixteen who are Fraser competent can consent to treatment. A child or young person can say they wish to withhold consent to their information being shared with another agency. A professional, however, may override this if they are of the firm view that not to do so may jeopardise the safety and welfare of the child or young person or that of another vulnerable person.
Where a professional worker expects to discuss a case with Named/Designated staff, and/or also with their line manager, or to have an informal conversation outside their own organisation thus breaching confidentiality; then this should be done in consultation with the young person, except where the professional believes it is not in their best interests to be informed.
Where a serious crime is suspected, advice should be sought from the police at the earliest opportunity to protect the child and minimise the risk of any evidence, such as emails or pictures, being destroyed before they can begin their investigation. All staff must be aware that the police will formally record contact made by an agency. An incident will be recorded as a crime where on the balance of probability an offence defined by law has been committed and there is no evidence to the contrary.
Any referral or potential referral should be discussed in the first instance with the young person. The organisation making the referral then has a duty of care to the individual to secure their physical and mental well-being and offer support during that time.
In working with young people it must always be made clear to them, at the outset of a consultation that absolute confidentiality cannot be guaranteed, and that there will be some circumstances where the needs of the young person can only be protected by sharing information with others.
This discussion with the young person may prove useful as a means of emphasising the gravity of some situations.
On each occasion that a young person is seen by an agency, 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.
Throughout the process it will be important to remember the perpetrator of abuse might be the parent; male or female; of the same sex; in a caring role for the individual. Similarly not all abuse is recognised as such by the victim at the time, and this is notably the case where a young person is being groomed. It may also be that the young person seeking advice is themselves a perpetrator.
"The police must be 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". (Recommendation 12 of Sir Michael Bichard's report). www.bichardinquiry.org.uk/report
In some cases urgent action may need to be taken to protect the 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 nominated person in their agency responsible for child protection. There may then be a need for further consultation with the Children's Social Care (formally Social Services). 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 either within the practitioner's own agency or, where necessary, with another agency, this may be done without initially sharing detailed information about the child, although an informed decision can only be made when in possession of all the facts.
The list of child protection plans can be consulted by practitioners within statutory organisations. Designated health professionals will be able to consult the Police Public Protection Unit to check details of the individual and their partner on the Sex Offenders Register without breaching confidentiality.
In accordance with guidance from the Department of Health, a health professional is responsible for deciding when a referral is or is not made. Where there is any uncertainty and a referral is not made, the reasons and rationale must be fully documented in the young person's notes at the time. This is particularly important in the case of under 13s because the law treats them as unable to give informed consent to sexual activity and the health professional is fully accountable for their decision not to refer in these circumstances.
Each agency must recognise that they only hold some pieces of the "jigsaw". For example, health professionals would not routinely have access to the Sex Offenders register, the list of child protection plans, or to wider multi-agency intelligence about a young person, their partner, or their family, without making a referral.
It is important to recognise that any information passed to Children's Social Care, even in confidence, can be released with a Court Order by a judge in the Family Court. The same does not apply to the Police, who may be entitled to withhold information under Public Interest Immunity. This should be considered when disclosing any information that could later put a patient or informant at risk.
When a referral is received by Children's Social Care, an enquiry to the list of child protection plans will be made, followed by a strategy discussion with the Police, the profession making the referral and other partner agencies. This discussion should be informed by the assessment undertaken using this protocol and, in the majority of cases, may be largely for the purposes of consultation and information sharing.
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 Social Care and other agencies may hold vital information that will assist in assessment of risk.
Following any referral to Children's Social Care and after a strategy discussion with the Police and/or any other agencies there may be one of these responses:
no further action deemed necessary
an initial assessment undertaken which may identify the young person as a child in need and additional services provided
an initial assessment undertaken which may identify the young person as a child at risk of significant harm and in need of child protection intervention
The outcome of the referral will be formally fed back to the referring agency.
During this process agencies must continue to offer the service and support to the young person.
Any girl, either under or over the age of 13, who is pregnant, must be offered specialist support and guidance by the relevant services. These services will also be a part of the assessment of the girl's circumstances, and must be included within local guidance.
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 the ability of the parents and carers and their commitment to protect the young person.
Exceptionally, a joint enquiry/investigation team may need to speak to a suspected child victim without the knowledge of the parent or carer. Relevant circumstances would include the possibility that a child would be threatened or otherwise coerced into silence; a strong likelihood that important evidence would be destroyed; or that the child in question did not wish the parent to be involved at that stage, and is competent to take that decision. In all cases where the police are involved, the decision about when to inform the parent or carer will have a bearing on the conduct of police investigations, and the strategy discussion should decide on the most appropriate timing of parental participation.
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 information with their parents and carers wherever safe to do so.
In law (Sexual Offences Act 2003), children under 13 are deemed to be unable to give informed consent to sexual activity, so professionals working with such children need to ensure that they have taken all reasonable steps to protect the child's welfare and prevent them from harm, and that they have operated within the guidance issued by their organisation
In all cases where the sexually active young person is under the age of 13, a full assessment must be undertaken. Advice or guidance should be obtained from the organisation's Child Protection lead, the Designated/Named clinician, or line manager
Although each case must be assessed individually, any sexual offence involving a child under 13 is very serious and should be taken to indicate a risk of significant harm and in most cases this will lead to a referral to the Children's Social Care in line with LSCB child protection procedures. A strategy discussion with the police and other agencies will be held. In order for this to be meaningful, the young person will need to be identified, as will their sexual partner if details are known.
All actions taken by the professional MUST BE RECORDED and the rationale for these actions clearly given.
A decision not to refer can only be made following a case discussion with the nominated lead for child protection within the professional's employing organisation. 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 a referral.
When a girl under 13 is found to be pregnant, whether or not she intends to proceed with the pregnancy, a referral to the Children's Social Care must be made following LSCB child protection procedures and a strategy discussion with the police and other agencies will be held. At this stage a multi agency support package should be formulated.
This difference in procedure reflects the position that, whilst sexual activity under 16 remains illegal, young people under the age of 13 are not competent to give consent to such sexual activity.
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 is 16 years. 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 Children's Social Care will depend on the level of risk/need assessed by those working with the young person.
Within this age range the presumption will be that the younger the child or the wider the age gap the stronger the presumption that sexual activity is a matter of concern.
Cases of concern will be discussed with the agency's nominated child protection lead and subsequently with other agencies. Where there is reasonable cause to suspect that significant harm to the child has, or might occur the case will be referred to Children's Social Care under LSCB procedures and a strategy meeting, to include the referrer, will be held to discuss next steps.
All cases will be carefully documented including where a decision is taken not to share information.
Although sexual activity in itself is not an offence over the age of 16, young people under the age of 18 are still entitled to protection under the Children Act 1989.
Consideration should 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 by Section 27 of the Sexual Offences Act 2003.
Where it is believed by the practitioner that a young person is suffering or at risk of significant harm referral to Children's Social Care, under LSCB child protection procedures, should be made.