To guide child protection workers in responding to young people with whom the Department of Communities (the Department) has a role, who are, or may become, sexually active.
In Western Australia, section 321 of the the Criminal Code Act Compilation Act 1913 (the Criminal Code) stipulates that the age of consent for sex is 16 years. The age of consent refers to the age that an individual is considered capable of legally providing informed consent to sexual interactions with another person. Under the Criminal Code, children under 16 years of age are considered to not have the emotional maturity to consent to sexual activities.
Children 13 years or younger are considered incapable of consenting to sex (s.319(2)(c) of the Criminal Code) and those accused of engaging in sexual behaviour with a child 13 years or younger cannot use the defences available under the Criminal Code (s.321(9-10)).
Consent is where a person freely and voluntarily agrees to engage in sexual activities and is not obtained by force, threat, intimidation, deception or fraud. Consent also includes both parties having an awareness of possible consequences of the sexual relationship, being intellectually able and not drunk or drugged.
To determine if child sexual abuse has occurred, an assessment of the children’s respective ages, developmental level and the nature of the relationship should occur. Sexual activities between young people are not considered as sexual abuse unless:
Where a child protection worker identifies that a child or young person may have been sexually abused or is likely to be, they must undertake the steps outlined in the Chapter 2.2 entries: Assessment and investigation processes and Child sexual abuse.
If there is concern that child sexual abuse may have occurred child protection workers must undertake an assessment (refer to Chapter 2.2: Assessment and investigation processes) in accordance with the Signs of Safety Child Protection Practice Framework.
If a child in the CEO's care, or with whom we have contact is engaging in sexual activities, child protection workers should consider the following factors to determine whether there is a concern that the child may be sexually abused:
Talking about sexual issues with a child is a sensitive matter and is best undertaken by someone who has a trusting relationship with the child.
Child protection workers need to determine the extent of the child's sexual knowledge and behaviour. There are sometimes challenges in having these discussions with the child and child protection workers should discuss any concerns with their team leader as part of case practice supervision.
Child protection workers should also explain to the child our responsibility to advise the WA Police if there is reasonable belief that a criminal act has occurred or is occurring in relation to the sexual activity.
Where it is believed that sexual activities pose a risk to the child’s wellbeing, this information must be discussed with the team leader and, if appropriate, care planning meetings. Where possible, the child should be informed that the concerns regarding their sexual activity will be discussed prior to the meeting.
Where the child protection worker has discussed the legal issue of consent with the child and the child still intends to be sexually active, it is important that the child is provided with information about the risks associated with unsafe sex and their responsibilities to themselves and to others.
The child protection worker must provide information about contraception and risks of sexually transmitted infections (safe sex) and support the child to take steps to prevent unplanned pregnancy. Information should be provided in various ways, including:
Child protection workers should refer children to the Department of Health Get the Facts website which provides advice and accurate information for young people in WA on relationships and safer sex.
When child protection workers discuss sexual activities and behaviours with the child, they should maintain appropriate professional boundaries and be mindful of potential accusations that can be made by the child.
Child protection workers should use the following strategies to minimise the opportunity for false accusations:
Based on the assessment of the child's circumstances and through discussion with the child, child protection workers must decide on the most appropriate course of action or referral, pursue the action or referral, and document the information on the child's case file. Child protection workers should refer to Chapter 2.2: Child sexual abuse.