2.18 Sexual activity in children and young people (including under-age sexual activity)

Many young people will develop a healthy and developmentally appropriate interest in sexual relationships whilst they are still children and some will do this before they reach the age of consent. This guidance is designed to assist professionals in identifying where children and young people’s sexual relationships may be abusive and therefore may need the provision of protection or additional services. It is based on the core principle that the child’s welfare is paramount, and it must be used in conjunction with West Midlands Children affected by Exploitation and Trafficking Policy.

Also see other related West Midlands procedures:

• 2.24 Children who abuse others
• 1.14 Allegations against Staff or Volunteers
• 2.1 Children affected by Exploitation and Trafficking

Numerous young people will develop a healthy and developmentally appropriate interest in sexual relationships whilst they are still children and some will do this before they reach the age of consent. The legal age for young people to consent to have sex is 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 or any sexual activity that they don't want. For offences when the child is under 13 years 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.

The guidance in this section applies to young people both male and female, regardless of their sexual orientation. It should be read in conjunction with any procedure individual agencies may have concerning underage sexual activity. Professionals should be aware that any child may be at risk of child exploitation (CE) and professionals should be aware of local CE policy and procedures.

The tool uses a traffic light system (Brook Sexual Behaviours Traffic Light Tool) to categorise the sexual behaviours of young people and is designed to help professionals:

• understand healthy sexual development and distinguish it from harmful behaviours
• assess and respond appropriately to sexual behaviours in children and young people
• make decisions about safeguarding children and young people.

By using the (Brook Sexual Behaviours Traffic Light Tool) and categorising sexual behaviours as green, amber or red, professionals across different agencies can assess if a child’s sexual behaviour is developmentally appropriate and the agencies can work to the same standardised criteria when making decisions to protect children and young people with a unified approach.

Sexual consent means being able to say yes and agreeing to sexual activity or sex. Consent in relationships is about an individual being in control and saying yes to doing things because they choose to – not because they are being pressured or under coercion. An individual has the right to say no or change their mind if they no longer wish to continue with sexual activity.

The age of consent (the legal age to have sex) in the UK is 16 years old. The laws are there to protect children and not to prosecute under-16s who have mutually consenting sexual activity.

Any sort of sexual contact without consent is illegal, regardless of the age of those involved. Children under the age of 13 cannot consent to any type of sexual activity.

Advice to children and young people includes:

• Children and young people should understand what consent means, how it applies to them and that they have the right to say no.
• Children and young people should know that it is important to check if the other person is happy to engage in any sexual behaviour by seeking their consent. Sexual consent is something that should never be presumed.
• Advice is that consent is required each and every time sexual activity occurs and any kind of sexual activity without the person’s consent is an offence.
• An individual has the right to change their mind, consent can be withdrawn, in which case sexual activity should stop.
• Children and young people should understand that ‘seeing someone’ should not lead to a presumption of consent to sex, nor imply an obligation to engage in sexual activity.

Rape and sexual offences are very serious crimes and those who commit them could face a life sentence. Rape is never the victim’s fault and anyone who has been a victim of an offence is encouraged to seek help and support.

Individuals must have the capacity to consent. The individual should have the ability to make their own rational and informed decisions. An individual should understand information given to them about a particular decision, retain that information long enough to be able to make the decision, weigh up the information available to make the decision and communicate their decision. Capacity includes not being intoxicated by alcohol, under the influence of drugs or medication, unconscious or asleep.

Under the Sexual Offences Act 2003, children under the age of 13 are not considered able or competent to give consent to sexual activity and penetrative sex is classed as rape. If a child under 13 years discloses penetrative sex or other sexual activity the practitioner must always discuss with their designated safeguarding lead. A referral to police and children’s social care must be made where a child under 13 is believed to be engaged in penetrative sexual activity, or in any other intimate sexual activity. A strategy discussion will be held to discuss the appropriate next steps.

Sexual activity with a child under 16 is also a criminal offence. Where sexual activity involving a child aged 13–15 is a feature, the professional in consultation with the designated safeguarding  lead must consider carefully the nature of the relationship in light of all available information known about the parties, particularly their relative ages, whether there are any indications or concerns about coercion or competence of the young person’s decision making, and where there are any such concerns held by any professional, then a referral to children’s social care must be made.

In all cases the professional must provide the child with information on staying safe and being healthy.

Whilst the Sexual Offences Act 2003 recognises that mutually agreed, non-exploitative sexual activity between teenagers does take place and that often no harm comes from it, any sexual activity between an adult and a young person under 16 is a criminal offence. This acknowledges that this group of young people are still vulnerable, even when they do not view themselves as such.

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 protection under the Children Act 1989/2004.

Consideration still needs to be given to issues of sexual exploitation and abuse of power in circumstances outlined below. 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. It is an offence under the Sexual Offences Act 2003 for an adult to engage in sexual activity with any person in respect of whom they are in a position of trust – this still applies if the person is over the age of 18, and whether or not the person consented.

In order to determine whether the relationship presents a risk to the young person, the following factors must be considered. This list applies to both male and female young people, regardless of their sexuality. It is not exhaustive and other factors may need to be taken into account:

• The age of the young person, whether the young person is competent to understand and consent to the sexual activity and their concept of the risks.
• What is known about the young person’s living circumstances or background.
• The nature of the relationship between those involved, particularly if there are age or power imbalances.
• Whether overt or covert 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/alcohol, places them in a position where they are unable to make an informed choices.
• 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 to other agencies as having other concerning relationships with similar young people.
• Whether methods used to secure compliance and/or secrecy by the sexual partner are consistent with behaviours considered to be ‘grooming behaviours’.
• The risk indicators and the vulnerability factors as identified by using a designated assessment tool by professionals must be taken into consideration.
• Whether the child or young person has a learning disability or mental health condition.

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 state 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.

In assessing the nature of any particular behaviour, practitioners must look at the facts of the actual relationship between those involved. Power imbalances are very important and can occur through differences in size, age and 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, e.g. a 15 year old child and a 25-year-old adult). The individual exerting the power maybe male or female of any sexual orientation. There will 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. (and thereby committing an offence under the Sexual Offences Act 2003 irrespective of the age of the victim). Any assessment must consider whether the use of sex for favours, e.g. exchanging sex for clothes, mobile phones, trainers, alcohol, drugs, cigarettes, peer acceptance, status, affection and ‘love’ is a factor.

If the young person has a learning disability, mental health 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. Professionals need to be aware that the Sexual Offences Act 2003 recognises the rights of people with of all abilities to a full life, including a sexual life. However, there is a duty to protect them from abuse and exploitation.

The definition of Sexual Abuse by children is the same as for sexual abuse by adults. Abusive/inappropriate behaviour is often characterised by a lack of true consent, the presence of a power imbalance and exploitation.

The boundary between what is abusive and what is part of normal childhood or youthful experimentation can be blurred, or confused by covert behaviour. The ability of professionals to determine whether a child’s sexual behaviour is developmental, inappropriate or abusive will hinge around the related concepts of true consent, power imbalance and exploitation as mentioned above. This may include children who exhibit a range of sexually harmful behaviours such as indecent exposure, obscene telephone calls, fetishism, bestiality and sexual abuse against adults or children and accessing/downloading sexually abusive child images from the Internet.

Developmental sexual activity encompasses those actions, which are to be expected from children as they move from infancy through to adulthood, developing an understanding of their physical, emotional and behavioural relationships with each other. Such sexual activity is essentially information gathering and experimentation characterised by mutuality and consent.

Sexual behaviour can be inappropriate socially, inappropriate to development or both. It is important to consider what negative effects the behaviour has on any of the parties involved and what concerns it raises about a child. It should be recognised that the behaviour may be motivated by information seeking but may cause significant upset, confusion physical damage etc. It may also be that the behaviour is acting out which may derive from other sexual situations which the child has been exposed to.

Abusive sexual activity is characterised by behaviour involving coercion, threats, aggression together with secrecy or where one participant relies on an unequal powerbase.

Interventions must be aimed at protection of vulnerable children and the provision of information and contraception (where appropriate) for other young people.

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.

In some cases urgent action must be taken to safeguard the welfare of a 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 must initially discuss this with the Designated Senior Person for Safeguarding Children in their agency. There may then be a need for further consultation with other agencies, including children’s social care for the relevant area. All discussions should be recorded, giving reasons for action taken and who was spoken to.

Where there are concerns that a young person may be at risk of sexual exploitation, a referral must be made to children’s social care in accordance with the local CE procedures. Where the situation is an emergency, the local police must be contacted immediately.

When a referral is received by children’s social care, consideration will be given to the need for an assessment and a Strategy Discussion/Meeting. 

After the Strategy Discussion there may be one of the following responses:

• That the child is not in need. In which case children’s social care will take no further action other than, where appropriate, to provide information and advice or sign-posting to another agency in accordance with the local levels of need criteria.
• That the child is in need but there are no concerns that the child has suffered, or is likely to suffer, significant harm. In which case children’s social care, in consultation with other agencies, will determine what services they should provide and whether to continue an assessment.
• That the child is in need and that there are concerns that the child has suffered, or is likely to suffer, significant harm. In which case children’s social care will initiate a Section 47 inquiry.

The Section 47 investigation will assess the risk of significant harm and decide the action required to safeguard the child, including, when required, a child protection conference.

Any girl, either under or over the age of 13, who is pregnant, must be offered specialist support and guidance by the relevant services. Such services must also be a part of the assessment of the girl’s circumstances. Local referral pathways should be in place to facilitate this support when required.

Decisions to share information with parents and carers will be taken using professional judgement, consideration of Fraser guidelines and in accordance with the local Information sharing procedure.

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 must encourage the young person, at all points, to share information with their parents and carers wherever safe to do so.

Sexual grooming

Section 15 of the Sexual Offences Act 2003 has been amended by the Serious Crime Act (2015) and now makes it an offence for a person 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 one occasion, and intends to commit a ‘relevant offence’ against that child either at the time of the meeting or on a subsequent occasion.

In addition, the Serious Crime Act introduced an offence of sexual communication with a child. This makes it an offence for an adult to communicate with a child for the purpose of obtaining sexual gratification, where the communication is sexual or if it is intended to elicit from the child a communication which is sexual. An offence is not committed in either circumstance if the adult reasonably believes the child to be 16 or over.

Protecting people with a mental health disorder

The Sexual Offences Act 2003 created three new categories of offences to provide additional protection to those 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.

Protecting children from sexual exploitation

The Sexual Offences Act 2003 covers a number of offences to deal with those who abuse and exploit children. The offences protect children up to the age of 18 and can attract tough penalties. They include:

• paying for the sexual services of a child
• causing or inciting child exploitation
• arranging or facilitating child exploitation
• controlling a child in relation to child exploitation
• sexual communication with a child.

These are not the only charges that may be brought against those who use or abuse children through child exploitation. Abusers and coercers often physically, sexually and emotionally abuse these children, and may effectively imprison them. If a child is a victim of serious offences, the most serious charge that the evidence will support should always be used.

Upskirting

The Voyeurism (Offences) Act, which is commonly known as the Upskirting Act, came into force on 12 April 2019. ‘Upskirting’ is where someone takes a picture under a persons clothing (not necessarily a skirt) without their permission and or knowledge, with the intention of viewing their genitals or buttocks (with or without underwear) to obtain sexual gratification, or cause the victim humiliation, distress or alarm. It is a criminal offence. Anyone of any gender, can be a victim.

• 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)
• Brook Sexual Behaviours Traffic Light Tool
• Keeping Children Safe in Education - Part 5 (Department for Education)