In this issue:
Government guidance on under-16 confidentiality policies
The courts and the age of consent
Police concerns about moves to change the law on smacking
The impact of TV on teenage sexual activity
FYC in the news
Why not civil partnerships?
Government guidance calls for confidentiality policies for under-16s
The Department of Health’s revised guidance to health professionals on contraception, sexual and reproductive health services (including abortion) for under-16s places a strong emphasis on ‘the duty of confidentiality’. Published on 30 July, the guidance states that:
‘All services providing advice and treatment on contraception, sexual and reproductive health should produce an explicit confidentiality policy which…makes clear that young people have the same right to confidentiality as adults.’
Such confidentiality policies ‘should be prominently advertised, in partnership with education, youth and community services’. Unless there is ‘a risk to the health, safety or welfare of a young person or others which is so serious as to outweigh the young person’s right to privacy’, any deliberate breach of confidentiality is to be treated as a serious disciplinary matter.
‘Good practice’
The guidance lists several issues which it is considered ‘good practice’ for doctors and health professionals to discuss with a young person to help him/her to make an ‘informed choice’:
- ‘The emotional and physical implications of sexual activity, including the risks of pregnancy and sexually transmitted infections.
- ‘Whether the relationship is mutually agreed and whether there may be coercion or abuse.
- ‘The benefits of informing their GP and the case for discussion with a parent or carer. Any refusal should be respected. In the case of abortion, where the young woman is competent to consent but cannot be persuaded to involve a parent, every effort should be made to help them find another adult to provide support, for example another family member or specialist youth worker.
- ‘Any additional counselling or support needs.’
‘Informed choice’
However, there is no mention either here, nor anywhere else in the guidance about the law on the age of consent. The impression is given throughout that young people are free to make an ‘informed choice’ about engaging in an unlawful sexual relationship under the age of 16. The only reference to statute appears in a section designed to assure health professionals that ‘the Sexual Offences Act 2003 does not affect the ability of health professionals and others working with young people to provide confidential advice or treatment on contraception, sexual and reproductive health to young people under 16’.
Under the terms of the Act, health professionals, teachers, Connexions Personal Advisers, youth workers, social practitioners, parents and anyone else acting to protect a child, are deemed to be ‘not guilty of aiding, abetting or counselling a sexual offence against a child where they are acting for the purpose of:
- ‘protecting a child from pregnancy or sexually transmitted infection,
- ‘protecting the physical safety of a child,
- ‘promoting a child’s emotional well-being by the giving of advice.’
In other words, the confidential provision of contraception to young people under the legal age of consent is justified on the basis that it may help the child to avoid becoming pregnant or contracting a sexually transmitted infection (STI).
We cannot think of any other area where the government presents breaking the law as an option and even helps to facilitate lawbreaking, or at least sets out to mitigate the consequences of unlawful conduct.
Elsewhere in this bulletin we document the manner in which the law of the age of consent has been undermined in recent decades, with devastating consequences for vulnerable young people.
‘Exceptional circumstances’
The other striking omission in the guidance is a failure anywhere to acknowledge the benefits of sexual restraint. It does not appear to have occurred to the framers of the guidance that this is the only guaranteed way of protecting young people from pregnancy and STIs. It is not even counted worthy of a mention in the list of issues to be discussed when a young person is seeking advice. Indeed, in its reference to the criteria outlined by Lord Fraser in the 1985 House of Lords ruling in the case of Victoria Gillick v West Norfolk and Wisbech Health Authority and the DHSS, the guidance omits to mention that the law lords were insistent that contraception should be given to young people under the age of consent without the knowledge or consent of the child’s parent only in exceptional circumstances.
Lord Fraser stressed that the five criteria he listed:
‘ought not to be regarded as a licence for doctors to disregard the wishes of parents on this matter whenever they find it convenient to do so. Any doctor who behaves in such a way would, in my opinion, be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his own professional body accordingly.’
He also stated:
‘Nobody doubts, certainly I do not doubt, that in the overwhelming majority of cases the best judges of a child’s welfare are his or her parents. Nor do I doubt that any important medical treatment of a child under 16 would normally only be carried out with the parents’ approval. That is why it would and should be most unusual for a doctor to advise a child without the knowledge and consent of parents on contraceptive matters.’
Lord Scarman similarly ruled:
‘…a doctor is only in exceptional circumstances to prescribe contraception to a young person under the age of 16 without the knowledge and consent of a parent… Only in exceptional cases does the guidance contemplate [a doctor] exercising his clinical judgement without the parents’ knowledge and consent.’
It is regrettable that the Department of Health’s revised guidance contains no acknowledgement of the law lords’ ruling that contraceptive provision to underage girls without parental knowledge or consent should be ‘most unusual’ and occur ‘only in exceptional circumstances’.
The Department’s press release included a quote from Dr Vivienne Nathanson, the Head of Science and Ethics at the British Medical Association. She remarked that:
‘it is essential that competent young people’s autonomy continues to be recognized and respected in this way, to ensure a good doctor-patient relationship, based on trust, within which young people feel they are able to seek advice’.
However, in its attempt to enhance the trust between a doctor and patient, we fear the guidance is breaking down the trust between parents and their children, which is a far more important relationship to safeguard. Parents are the primary protectors of their children, yet they are being sidelined in the name of ‘the right of the child to confidentiality’.
We are concerned that vulnerable children and young people are increasingly being regarded and treated as autonomous individuals rather than members of a family, and that parental responsibilities are being usurped by those whose interest in them is professional rather than personal. Of far greater importance than recognising and respecting young people’s autonomy is the need to pay due regard to the autonomy of the family unit and to uphold the law on the age of consent.
Family & Youth Concern has taken up this issue with Melanie Johnson, the government minister responsible for this area of policy and will continue to oppose such moves to further undermine parents and the protective principles of the law on the age of consent to sexual intercourse.
The age of consent and the courts
Publicity surrounding a recent court case involving an 18 year-old man who had unlawful sexual intercourse with a 12 year-old girl has served to highlight the way in which the law on the age of consent is increasingly being disregarded by the courts. Judge Michael Roach described it as an ‘exceptional case’ and granted a conditional discharge on the basis that the girl was a ‘willing participant’.
Professor Liz Kelly of the Child and Women Abuse Studies Unit at London Metropolitan University, said the sentence given out at Bristol Crown Court sent out ‘totally the wrong message’. She commented, ‘This is basically saying that the age of consent does not matter… If judges aren’t going to pass judgment with sentences that actually say this matters, then why do we have an age of consent?’
Under the Criminal Justice Act 1988, the Attorney-General has the power to refer a case to the Court of Appeal within 28 days where it appears to him that the sentence has been unduly lenient. At the time of going to press, his decision was still awaited.
In Bulletin 111, we drew attention to remarks made by Professor David Hall, President of the Royal College of Pediatrics and Child Health, where he told the Joint Committee on Human Rights that it was legitimate for a GP to give contraception to a 12 year-old girl involved in a sexual relationship with a 22 year-old man. Professor Hall felt that in assessing whether the girl was ‘making a mature and considered decision’, most doctors would ‘consider her very competent by the very act of having come to seek advice on contraception’.1
It is this casual attitude towards underage sex, encouraged by many sex education programmes and reflected in government guidance which has led to the scant regard now being paid to the age of consent. Evidence of this is found in the substantial reduction in the number of prosecutions and convictions for unlawful intercourse over recent years.
The graph below shows the marked rise in the number of convictions for unlawful intercourse with a girl aged under 16 from 1950 to the early 1960s, followed by a dramatic decline in the in the late 1970s and early 1980s. Since then there have been comparatively minor fluctuations in the annual number of convictions, which have remained well below the 1950 figure. Convictions for unlawful intercourse against girls aged under 13 are now at their lowest level for over fifty years.
Source: RDS – Office for Criminal Justice Reform, Home Office
As one commentator remarked in response to the recent Bristol Crown Court judgment:
‘However much contempt we have for the culprit and his abuse of a child, we should be looking to ourselves as parents and as a society that has knowingly, carelessly, unashamedly sexualised our teenagers to the point where sex with a 12-year-old does not even merit a custodial sentence… Judge Roach is not acting in a vacuum, he is merely reflecting a seismic change in attitudes towards the young, and especially towards sex’.2
Notes
1. Joint Committee on Human Rights, Twenty-second Report of Session 2001-02, The Case for a Human Rights Commission: Interim Report, EV60.
2. ‘A generation betrayed’, Daily Mail, 9 September 2004.
The consequences of not taking under-age sex seriously
‘If all cases of under-age sex are now to be reported, the agencies will be snowed under and suffocated in a month! The problem is that child protection agencies, schools and sexual health projects have not taken under-age sex seriously.
‘Also liberal people in sexual health programmes, reacting against right-wing religious lobbies, have failed to address issues of coercion and macho sexism even among similar-aged teenagers, and act as if everyone was giving freely informed consent at 12, 13 or 14. So numerous cases of coerced sex have been missed by well-meaning people.’
Dr Sarah Nelson, Honorary Research Fellow in Sociology at the University of Edinburgh. From a letter to Community Care, 19-25 August 2004.
Police chief speaks out against smacking ban
Following its Second Reading in the House of Commons on 13 September, the Children Bill has now been referred to a standing committee of 22 MPs where it will be considered on 12, 14, 19 and 21 October.
The question of parental discipline featured prominently in the Second Reading debate, with several MPs pledging to support further amendments to impose a complete ban on smacking. As the House of Commons prepares to debate the issue further later this autumn, we reproduce below a letter from the Chairman of the Kent Police Federation in which he questions the need for a change in the current law.
Dear Editor
The newspapers have been full of the potential changes to the law to limit the 1860 defence of ‘reasonable chastisement’, when disciplining a child, to a ‘light tap’ following the House of Lords’ rejection of an outright ban on smacking. I won’t venture into the rights and wrongs of smacking a child; I have my own view and that may well differ from the views of a number of those I represent.
What is clear is that legislation to restrict smacking to a ‘light tap’ has the potential for disaster. What is a ‘light tap’? Surely this is a subjective test where perception is all. Would parents be limited to a singular ‘light tap’? Would they be able to give two ‘light taps’ for two transgressions or can any number of ‘light taps’ be administered if the child continues with their bad behaviour?
I suspect we will see complaint upon complaint from disgruntled children who have been smacked by their parents, and ultimately the criminalisation of good and loving parents. No one questions the police’s responsibility to investigate child abuse, but do we really want to see the police and the criminal justice system as the arbiters over what is a ‘light tap’?
The tragic case of Victoria Climbié is used in various media reports as a justification for action on smacking. Let us be under no illusion, the systematic and vile abuse of Victoria Climbié was not done by people who failed to understand the boundaries of the 1860 defence of ‘reasonable chastisement’. The outlawing of smacking or its redefining will have no effect on such cases, no more than laws to restrict firearms have reduced gun crime; violent criminals are violent criminals and they take no account of the law.
We currently have adequate legislation in place. Yes it is 140 years old but I would suggest that ‘reasonable chastisement’ has stood the test of time. The reasonableness of the chastisement is a matter for today’s society; what was reasonable in the 19th century may not be reasonable today. In addition, I do not see any evidence that the defence of ‘reasonable chastisement’ has become a child abusers charter. Such people will abuse children irrespective of the law.
The sad reality is that a change in the law will have the potential to divert valuable resources away from the Victoria Climbiés of this world, the very cases that we should be investigating.
Yours faithfully
Ian Pointon
Chairman, Kent Police Federation
Originally published in the Police Review, 16 July 2004.
Reproduced by kind permission of the author.
The influence of television on teenage sexual activity
A survey of 1,792 young people aged 12-17 from across the United States has found that adolescents who watch large amounts of television containing sexual content are twice as likely to begin engaging in sexual intercourse in the following year as those who watched the least amount of television with sexual content.
The study, conducted by the Rand Corporation and published in the September issue of the journal Pediatrics, is believed to provide the strongest evidence yet of a link between the sexual content of television programmes and subsequent sexual activity. Rand psychologist, Rebecca Collins a member of the research team, said that the impact of television viewing on subsequent behaviour was so large that ‘even a moderate shift in the sexual content of adolescent TV watching could have a substantial effect on their sexual behaviour’.
Television programmes in which the characters merely talked about sex (61 per cent of all programmes) had a similar impact on adolescent behaviour as programmes that overtly portrayed sexual activity (32 per cent of all programmes).
The Rand study also found that young people were less likely to initiate sexual intercourse if they lived with both parents, if their parents did not approve of them having sexual relations, if their parents monitored their activities, if they were religious, and if they were in good mental health. Adolescents who fell into this category were less likely to be exposed to sexual content on television in any case, but even where they were, they remained less likely to engage in sexual activity.
The researchers concluded: ‘Reducing the amount of sexual talk and behaviour on TV or the amount of time that adolescents are exposed to this content is likely to appreciably delay the initiation of both coital and noncoital sexual activities.’
* Collins, Rebecca L, Marc N Elliott, Sandra H Berry, David E Kanouse, Dale Kunkel, Sarah B Hunter, and Angela Miu, ‘Watching Sex on Television Predicts Adolescent Initiation of Sexual Behaviour,’ Pediatrics, Vol 114, No 3, September 2004.
FYC in the news
In recent weeks, Family & Youth Concern has received a considerable amount of press and media coverage on a wide range of issues. Subjects addressed include the role of parents, parent education, the benefit system, the discipline of children, the Civil Partnership Bill, sex education, and the confidential provision of the morning-after pill to under-16s. We have been quoted in the Daily Express, the Daily Mail, the Daily Mirror, the Daily Telegraph, the Guardian, the Independent, the Times, the Sunday Times, The Sun, The Scotsman, the Western Mail, the Birmingham Post, and the Northern Echo.
We have also contributed articles which have appeared in the Early Years Educator, WI Home & Country, the Times and the Western Mail, and have featured in several magazines and journals, including Children Now, Community Care, Community Practitioner and Here’s Health.
In addition to appearances on Sky News, BBC News at Ten and the Politics Show, we have taken part in numerous radio discussions and phone-ins, including The World at One on Radio 4, BBC Radio 5, Belfast Citybeat, Century Radio, Classic Gold, Dublin Newstalk, and BBC radio stations in Scotland, Ulster, Wales, Cambridge, Greater Manchester, London, Nottingham, Shropshire, and the West Midlands.
Why not civil partnerships?
Marriage is properly defined as ‘the voluntary union for life of one man and one woman, to the exclusion of all others’. As such, it is a relationship like no other and its uniqueness is reflected in the special rights and privileges which are accorded to married couples. Compared with cohabitation, marriage is associated with greater stability, better physical and mental health and lower rates of domestic violence. It also acts as a restraint on sexual unfaithfulness and provides the best environment for raising children according to every indicator. To legislate and formulate public policy on the assumption that all relationships are of equal value to society is to fly in the face of the facts. In seeking to extend the benefits of marriage to a small minority of unmarried couples (i.e. homosexuals) in the current Civil Partnerships Bill, it is to be feared that the government is embarking on a social experiment founded on political ideology rather than on the basis of empirical evidence. While there is certainly a case for reforming inheritance tax law, in view of the many benefits that marriage brings to children and to society as a whole its special legal status should be preserved.
Norman Wells
Published in WI Home & Country, October 2004