Capacity to Consent

A person must be capable of giving consent, which means they understand the information given to them and can use it to make an informed decision. Consent cannot be given by a person who is incapacitated, this could be through alcohol, substance misuse or vulnerabilities through coercion.

Imbalance of Power

When people interact with one another there are many factors that can affect who has more, or less, power in that interaction. Differences in power can cause an imbalance, either in particular situations or in whole relationships. Factors that can create power imbalances include gender, age, social class, economic and sexual identity difference, and disability. It is important to be aware of power imbalances and acknowledge that someone’s social position (i.e. their age, sexual identity, gender, disability etc.) may impact on their behaviour in any situation and therefore whether they truly gave consent.

Sexual Consent

The age of consent or the legal age to have sex in the UK is 16. 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 13 cannot legally consent to any type of sexual activity. It's important to remember that the law is there to protect children and young people, not to punish them. If both people are under 16 and mutually consent to doing things, it's still against the law. But it's unlikely either of them would be punished in law. When someone over 16 is having sex with someone under 16, they're also breaking the law. They may be arrested even if everyone has consented.

Consent for young people in Sexual Health Settings

Practitioners offering sexual health services to under 16's without parental knowledge or permission can do so as long as the young person they are treating meets the Fraser Guidelines.

Practitioners using the Fraser guidelines 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.

Manager’s responsibilities

It is important that staff understand their responsibilities and the laws relating to young people and consent.

Managers need to ensure staff have completed the appropriate levels of relevant training to enable them to work with sexually active young people. Managers should be providing support and supervision for their teams.

Reflective practice supervision should be identifying if a child has been spoken to and if we understand the child’s lived experience.

Questions for professionals to ask themselves

• Does the young person understand what consent is?
• Are you using positive language?
• Are you providing a clear message that consent must be mutual?
• Are you preventing perpetration?

Open discussions with young people

Young people may talk about their own experiences to understand difficult issues. This can include discussions about their own relationships and experiences of consent. This can be positive for young people but also feel scary or overwhelming. Reflect back to the young person what they are saying to check their understanding. This will also help the young person feel listened to.

When discussing consent, it should be noted that these messages refer to any sexual activity/experience (anything from sexual comments, kissing, and sexual touching to oral, vaginal and anal sexual intercourse). This may also include online relationships and sexual activity. This should be made clear when communicating with young people so that young people who haven’t had sex understand the relevance to their own experience.

What to do

Plan for this eventuality and ensure that additional and confidential emotional support is available, both for young people and professionals.

Help young people access the information, advice and support they need by being aware of and signposting young people to local services and people they can talk to.

You can help young people feel confident in doing so by making sure they understand that these services are provided in confidence, unless the young person is deemed to be at risk and that in such cases, child protection procedures will be implemented.

The impact on a professional

It’s important to have support in place in case of a disclosure. Be aware of local child protection processes and if you need more information or advice on how to support young people who have experienced, or perpetrated non-consensual sexual activity contact your Child Protection lead.

Key Messages

The law talks about the ‘age of consent’. This means the age someone needs to be before they can agree to have sex (this means vaginal, anal and oral sex).

The ‘age of consent’ in England for young people is 16. This is the case whether they’re straight, lesbian, gay, bisexual and/or transgender. To help protect young people, it is an offence for someone aged 18 or over, to engage in sexual activity with someone aged 16 or 17 if the older person is in a position of trust. A position of trust is someone who looks after children and young people, in a school or a care home for example.

The law says that anyone under the age of 13 is too young to give consent to any sexual activity. It is always wrong and against the law to coerce, manipulate or force someone into having sex, no matter what age you or they are. Seeking or requiring sexual activity from someone in exchange for anything – including drugs/alcohol, a place to stay, being part of a group, protection from violence – is sexual exploitation, regardless of whether the other person agrees or is thought to have agreed.

This guidance should be read in conjunction with the Kent and Medway Safeguarding Procedures. Factsheet developed in reference to: Healthy relationships and consent: key messages for young people – Scottish Government.