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Part 2A: Identification of abuse and neglect

Age of consent

In each UK nation, the age at which people can legally consent to sexual activity (also known as the age of consent) is 16-years-old. This is the same regardless of the person's gender identity, sexual identity and whether the sexual activity is between people of the same or different gender.

Sexual activity involving a child under the age of 13 should always result in a child protection referral. This includes situations where both children engaged in sexual activity are under 13 years old and even if the child under 13 has agreed to sexual activity. Anyone under 13 lacks capacity to give valid consent to any sexual act.

The law is there to protect children from abuse or exploitation. It is not designed to unnecessarily criminalise children.

Although children over the age of 16 can legally consent to sexual activity, they may still be vulnerable to harm through an abusive sexual relationship. Practitioners should assess and address their safety and wellbeing in line with safeguarding procedures.

The law gives extra protection to all under 18 year olds, regardless of whether or not they are over the age of consent. It is illegal:

  • to take, show or distribute indecent photographs of a child under the age of 18 (this includes images shared through sexting or sharing nudes)
  • to sexually exploit a child under the age of 18
  • for a person in a position of trust (for example teachers or care workers) to engage in sexual activity with anyone under the age of 18 who is in the care of their organisation.

Regarding sexual activity, the GMC highlights in their guidance: 0-18 years: guidance for all doctors, (paragraphs 57 – 62):

  • “A confidential sexual health service is essential for the welfare of children and young people. Concern about confidentiality is the biggest deterrent to young people asking for sexual health advice. That in turn presents dangers to young people’s own health and to that of the community, particularly other young people.
  • You can disclose relevant information when this is in the public interest. If a child or young person is involved in abusive or seriously harmful sexual activity, you must protect them by sharing relevant information with appropriate people or agencies, such as the police or social services, quickly and professionally.
  • You should consider each case on its merits and take into account young people’s behaviour, living circumstances, maturity, serious learning disabilities, and any other factors that might make them particularly vulnerable.
  • You should usually share information about sexual activity involving children under 13, who are considered in law to be unable to consent. You should discuss a decision not to disclose with a named or designated doctor for child protection and record your decision and the reasons for it.
  • You should usually share information about abusive or seriously harmful sexual activity involving any child or young person, including that which involves:
    • a young person too immature to understand or consent
    • big differences in age, maturity or power between sexual partners
    • a young person’s sexual partner having a position of trust
    • force or the threat of force, emotional or psychological pressure, bribery or payment, either to engage in sexual activity or to keep it secret
    • drugs or alcohol used to influence a young person to engage in sexual activity when they otherwise would not
    • a person known to the police or child protection agencies as having had abusive relationships with children or young people.
  • You may not be able to judge if a relationship is abusive without knowing the identity of a young person’s sexual partner, which the young person might not want to reveal. If you are concerned that a relationship is abusive, you should carefully balance the benefits of knowing a sexual partner’s identity against the potential loss of trust in asking for or sharing such information.”
Fraser guidelines and Gillick competence

These two terms are often used together but there are distinct differences between them.

The Fraser guidelines apply to advice and treatment relating to contraception and sexual health.

Gillick competency is often used in a wider context to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.

Fraser guidelines

Fraser guidelines are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment. They can also be applied to advice and treatment for sexually transmitted infections and the termination of pregnancy.

Practitioners using the Fraser guidelines to guide care should be satisfied of the following:

  • the young person cannot be persuaded to inform their parents or carers that they are seeking this advice or treatment (or to allow the practitioner to inform their parents or carers)
  • the young person understands the advice being given
  • the young person's physical or mental health or both are likely to suffer unless they receive the advice or treatment
  • it is in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent
  • the young person is very likely to continue having sex with or without contraceptive treatment.

Health professionals should still encourage the young person to inform his or her parent(s)/carers or get permission to do so on their behalf, but if this permission is not given they can still give the child advice and treatment. If the conditions are not all met, however, or there is reason to believe that the child is under pressure to give consent or is being exploited, there would be grounds to break confidentiality which may include (depending on the situation) sharing necessary and proportionate information with parents and making a child safeguarding referral.

When using Fraser guidelines for issues relating to sexual health, you should always consider any previous concerns that may have been raised about or by the young person and any potential child protection concerns:

  • Underage sexual activity is a possible indicator of child sexual exploitation and children who have been groomed may not realise they are being abused.
  • Sexual activity with a child under 13 should always result in a child protection referral.
  • If a young person presents repeatedly about sexually transmitted infections or the termination of pregnancy this may be an indicator of child sexual abuse or exploitation.

The GMC has further guidance on sexual activity of children and young people in their document: ‘0-18 years: guidance for all doctors’ as noted above.

Gillick competence

Gillick competence is the principle used to judge capacity in children to consent to medical treatment. The Gillick test determines that children under 16 can consent if they have sufficient understanding and intelligence to fully understand what is involved in a proposed treatment, including its:

  • purpose,
  • nature,
  • likely effects and risks,
  • chances of success and
  • the availability of other options.

If a child passes the Gillick test, he or she is considered ‘Gillick competent’ to consent to that medical treatment or intervention. However, as with adults, this consent is only valid if given voluntarily and not under undue influence or pressure by anyone else. Additionally, a child may have the capacity to consent to some treatments but not others. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. Therefore each individual decision requires assessment of Gillick competence.

If a child does not pass the Gillick test, then the consent of a person with parental responsibility (or sometimes the courts) is needed in order to proceed with treatment.

If a young person refuses treatment, particularly treatment that could save their life or prevent serious deterioration in their health, this presents a challenge that needs to be carefully considered. The GMC in their guidance 0 – 18 years (paragraphs 30 – 33), outline what you have to consider and what steps you should take in this scenario. These include weighing up the harms to the rights of children and young person against the benefits of treatment and including other professionals such as independent advocates, safeguarding professionals and taking legal advice.

References



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