Sexual Offences against Children (PDF)

Sexual Offences against Children committed by Children or Young Persons Article 20 (1) A person under 18 commits an offence if he does anything which would be an offence under any of articles 16 to 19 if he were aged 18. (2) A person guilty of an offence under this article is liable...

Sexual Offences against Children committed by Children or Young Persons Article 20 (1) A person under 18 commits an offence if he does anything which would be an offence under any of articles 16 to 19 if he were aged 18. (2) A person guilty of an offence under this article is liable a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory minimum, or both; b. on conviction on indictment, to imprisonment for a term not exceeding 5 years. Key learning point The offences under Articles 16 to 19 refer to the offender being aged 18 and over. However, Article 20 means that these same offences also apply to offenders under 18, with the difference being reduced sentencing. Arranging or Facilitating Commission of a Sex Offence against a Child Article 21 (1) A person commits an offence if— (a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and OFFICIAL [PUBLIC] Page 64  (b) doing it will involve the commission of an offence under any of Articles 16 to 20. (2) A person does not commit an offence under this Article if— (a) he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another to do, and (b) any offence within paragraph (1)(b) would be an offence against a child for whose protection he acts. (3) For the purposes of paragraph (2), a person acts for the protection of a child if he acts for the purpose of— (a) Protecting the child from sexually transmitted infection, (b) Protecting the physical safety of the child, (c) Preventing the child from becoming pregnant, or (d) Promoting the child's emotional well-being by the giving of advice, and not for the purpose of obtaining sexual gratification or for the purpose of causing or encouraging the activity constituting the offence within paragraph (1)(b) or the child's participation in it. Key learning point This offence applies to activities by which the defendant intends to commit (or believes another person will commit) one of the relevant offences (Articles 16 – 20) anywhere in the world. This offence is complete whether or not the sexual activity actually takes place. OFFICIAL [PUBLIC] Page 65  (4) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years. Key learning point An example of the exception is a health worker supplying condoms to under 16’s who are intent on having sex in any event and need protection from infection. Meeting a Child Following Sexual Grooming etc. Article 22 22 (1) A person aged 18 or over (A) commits an offence if – A has met or communicated with another person (B) on one or more occasions, and subsequently – i. A intentionally meets B, or ii. A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or iii. B travels with the intention of meeting A in any part of the world, a. A intends to do anything to or in respect of B, during or after the meeting mentioned in sub-paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence, b. B is under 16, and c. A does not reasonably believe that B is 16 or over. OFFICIAL [PUBLIC] Page 66  (2) In paragraph (1) – a. the reference to A having met or communicated with B is a reference to A having met B in any part of the world or having communicated with B by any means from, to or in any part of the world; b. “relevant offence” means - (i) an offence under this Order or [F1 (ii) an offence under section 2 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation), or] (iii) anything done outside Northern Ireland which is not an offence under paragraph (i) or (ii) but would be an offence within paragraph (i) or (ii) if done in Northern Ireland. (3) A person guilty of an offence under this Article is liable - a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 10 years. OFFICIAL [PUBLIC] Page 67  Key learning point This Article also applies to the offence of Human Trafficking. Human trafficking is where someone arranges or facilitates the travel of another person with a view to them being exploited. Exploitation covers a number of criteria such as slavery, servitude and forced or compulsory labour. This section of the notes is concerned with sexual offences and those sexual offences are any offence within The Sexual Offences (NI) Order 2008 or Article 3(1) (a) of the Protection of Children (NI) Order 1978 (indecent photographs of children) Sexual Communication with a Child Article 22 22A (1) A person aged 18 or over (A) commits an offence if – a. for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B), b. the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and c. B is under 16 and A does not reasonably believe that B is 16 or over. (2) For the purposes of this Article, a communication is sexual if – a. any part of it relates to sexual activity, or b. a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual; c. and in sub-paragraph (a) “sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider to be sexual. OFFICIAL [PUBLIC] Page 68 (3) A person guilty of an offence under this Article is liable - a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 2 years.” Sexual Grooming: Pretending to be a child. (4) (1) After Article 22A of the Sexual Offences (Northern Ireland) Order 2008 insert— “Communicating with a person with a view to grooming a particular child 22B.—(1) A person aged 18 or over (A) commits an offence if— (a) A communicates with another person (B), (b) at the time of the communication, A intentionally presents himself or herself to B, to a group of persons that includes B or to the public at large as being under 18, (c) A’s intention in communicating with B is to establish or participate in an exchange of communications with a particular person whom A has in mind (C) with a view to subsequently committing a relevant offence against C, and (d) C is under 16 and A does not reasonably believe that C is 16 or over. (2) B and C may be the same person. (3) If— (a) A communicates with a group of persons, and (b) the group contains a person to whom A intentionally presents himself or herself as being under 18, A is to be regarded as communicating with that person. Communicating with a group with a view to grooming a particular child 22C. A person aged 18 or over (A) commits an offence if— (a) A communicates with a group of persons, OFFICIAL [PUBLIC] Page 69 (b) at the time of the communication, A intentionally presents himself or herself to the group or to the public at large as being under 18, (c) A’s intention in communicating with the group is to establish or participate in an exchange of communications with a particular person whom A has in mind (B) with a view to subsequently committing a relevant offence against B, and (d) B is under 16 and A does not reasonably believe that B is 16 or over. Communicating with a person with a view to grooming any child 22D.—(1) A person aged 18 or over (A) commits an offence if— (a) A communicates with another person (B), (b) at the time of the communication, A intentionally presents himself or herself to B, to a group of persons that includes B or to the public at large as being under 18, and (c) A’s intention in communicating with B is to establish or participate in an exchange of communications with a person or persons aged under 16 with a view to subsequently committing a relevant offence against such a person; but without having a particular person in mind at the time of the communication. (2) If— (a) A communicates with a group of persons, and (b) the group contains a person to whom A intentionally presents himself or herself as being under 18, A is to be regarded as communicating with that person. Communicating with a group with a view to grooming any child 22E. A person aged 18 or over (A) commits an offence if— (a) A communicates with a group of persons, (b) at the time of the communication, A intentionally presents himself or herself to the group or to the public at large as being under 18, and (c) A’s intention in communicating with the group is to establish or participate in an exchange of communications with a person or persons aged under 16 with a OFFICIAL [PUBLIC] Page 70  view to subsequently committing a relevant offence against such a person; but without having a particular person in mind at the time of the communication. Communication with a view to grooming: interpretation 22F. For the purposes of Articles 22B to 22E— (a) A presents himself or herself to a person (or persons) as being under 18 if a reasonable person would consider that, in all the circumstances, A presents himself or herself to that person (or those persons) as being under 18; (b) “relevant offence” means— (i) an offence under this Order, (ii) an offence under section 2 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation), or (iii) anything done outside Northern Ireland which is not an offence under sub- paragraph (i) or (ii) but would be an offence within sub-paragraph (i) or (ii) if done in Northern Ireland. Key learning point This offence is concerned in communication of a sexual nature. The communication can be in any format i.e. email, text message, chatrooms but it must be intentional communication. The offender must be 18 years of age or over and the victim under 16 years of age. Offences against Children under 18: Abuse of Position of Trust This legislation also provides safeguards for children up to the age of 18. It creates offences for those who are deemed to be in a position of trust and therefore are not permitted to engage in sexual activity with those in their care regardless of whether the child is over 16 years of age of not. OFFICIAL [PUBLIC] Page 71 Abuse of Position of Trust: Sexual Activity with a Child Article 23 23 (1) A person aged 18 or over (A) commits an offence if - a. he intentionally touches another person (B), b. the touching is sexual, c. A is in a position of trust in relation to B, d. where paragraph (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and e. either - i. B is under 18 and A does not reasonably believe that B is 18 or over, or ii. B is under 13. (2) This paragraph applies where A— a. is in a position of trust in relation to B by virtue of circumstances within Article 28(2), (3), (4) or (5), and b. is not in such a position of trust by virtue of other circumstances. (3) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. (4) Where in proceedings for an offence under this Article— (a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within Article 28(2), (3), (4) or (5), and (b) it is not proved that he was in such a position of trust by virtue of other circumstances, OFFICIAL [PUBLIC] Page 72  It is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances. A person guilty of an offence under this Article is liable - a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b) on conviction on indictment, to imprisonment for a term not exceeding 5 years. Key learning point The offender must be 18 or over and in a position of trust. The victim must be under 18 years of age. There is a list of positions of trust within the legislation but anyone over 18 who cares for someone under 18 who is accommodated and cared for in a hospital, independent clinic, residential care home, private hospital, voluntary home, children’s home, residential family centre or young offender’s institution will be in a position of trust. New legislation introduced in 2023 now extends the position of trust for Articles 23-26, into sport and religion. This relates to anyone who coaches, teaches trains, supervise, or instructs the victim in sport or religion on a regular basis. OFFICIAL [PUBLIC] Page 73 Abuse of Position of Trust: Causing or Inciting a Child to Engage in Sexual Activity Article 24 (1) A person aged 18 or over (A) commits an offence if— (a) he intentionally causes or incites another person (B) to engage in an activity, (b) the activity is sexual, (c) A is in a position of trust in relation to B, (d) where paragraph (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and (e) either— (i)B is under 18 and A does not reasonably believe that B is 18 or over, or (ii)B is under 13. (2) This paragraph applies where A— (a) is in a position of trust in relation to B by virtue of circumstances within Article 28(2), (3), (4) or (5), and (b) is not in such a position of trust by virtue of other circumstances. (3) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. (4) Where in proceedings for an offence under this Article— (a) it is proved that the defendant was in a position of trust (b) it is not proved that he was in such a position of trust by virtue of other circumstances, it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances. OFFICIAL [PUBLIC] Page 74  (5) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years. Key learning point The ‘causing’ and ‘inciting’ sexual activity is the same as the Article 17 offence but with the added protection for under 18’s from those over 18 who are in a position of trust. Abuse of Position of Trust: Sexual activity in the presence of a child. Article 25 (1) A person aged 18 or over (A) commits an offence if— (a) he intentionally engages in an activity, (b) the activity is sexual, (c) for the purpose of obtaining sexual gratification, he engages in it— (i) when another person (B) is present or is in a place from which A can be observed, and (ii)knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, (d) A is in a position of trust in relation to B, (e) where paragraph (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and (f) either— (i) B is under 18 and A does not reasonably believe that B is 18 or over, or (ii)B is under 13. OFFICIAL [PUBLIC] Page 75  (2) This paragraph applies where A— (a) is in a position of trust in relation to B (b) is not in such a position of trust by virtue of other circumstances. (3) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. (4) Where in proceedings for an offence under this Article— (a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within Article 28(2), (3), (4) or (5), and (b)it is not proved that he was in such a position of trust by virtue of other circumstances, it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances. (5) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years. Abuse of Position of Trust: Sexual activity in the presence of a child. Article 26.—(1) A person aged 18 or over (A) commits an offence if— (a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity or to look at an image of any person engaging in an activity, (b) the activity is sexual, OFFICIAL [PUBLIC] Page 76  (c) A is in a position of trust in relation to B, (d) where paragraph (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and (e) either— (i)B is under 18 and A does not reasonably believe that B is 18 or over, or (ii)B is under 13. (2) This paragraph applies where A— (a) is in a position of trust in relation to B (b) is not in such a position of trust by virtue of other circumstances. (3) Where in proceedings for an offence under this Article it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. (4) Where in proceedings for an offence under this Article— (a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within Article 28(2), (3), (4) or (5), and (b) it is not proved that he was in such a position of trust by virtue of other circumstances, it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances. (5) A person guilty of an offence under this Article is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years. OFFICIAL [PUBLIC] Page 77 Indecent Photographs of Children Protection of Children (Northern Ireland) Order 1978 3. (1) any person who - a) takes, or permits to be taken or makes, any indecent photograph or pseudo- photograph of a child; or b) distributes or shows such indecent photographs or pseudo-photographs; or c) has in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or d) publishes or causes to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs or intends to do so. Key learning point ‘Take’ encompasses taking a photograph on a mobile phone or camera. ‘Make’ means to “cause to exist; to produce by action; to bring about”. Saving the indecent image each time is ‘making’. Pseudo-photograph is an image made by computer-graphics which appears to be a photograph. Indecent is not defined in legislation but can include penetrative and non-penetrative sexual activity. It would be obvious that some photographs would meet the criteria of being indecent but the criteria would also be met if a photograph portrayed a child posing erotically but with no sexual activity. OFFICIAL [PUBLIC] Page 78 Examples of this are: Downloading Opening an email attachment Printing an image Saving the image Key learning point Show is when a person shows an indecent image to another person. Criminal Justice (Northern Ireland) Order 1988 This legislation deals with possession of an indecent image or pseudo-photograph. Possession of Indecent Photograph of Child 15. (1) [Subject to Article 15A] it is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession. There are defences within both statutes such as a person in possession had a legitimate reason for distributing or showing photographs, or pseudo-photographs or having them in his possession. For example, this would cover someone who had discovered the OFFICIAL [PUBLIC] Page 79 indecent photographs and had taken possession of them and delivered them to the police when reporting the matter. Another defence is that he himself had not seen the photographs or pseudo-photographs and did not know, or have any cause to suspect that the photographs were indecent. For example, this would cover someone who worked in a shop which developed photographs. If a customer had dropped off a film for development (or a memory stick) and they were processed the shop worker may not have any knowledge that the photographs they were printing were indecent. Both offences can be tried summarily or on indictment. OFFICIAL [PUBLIC] Page 80 Public Protection and Safety PPS03 Child protection Introduction Child abuse is an emotive topic and frequently features in the media. Safeguarding and protecting children and young people is one of the most important roles for the Police Service of Northern Ireland. It is important that child protection is not seen solely as the role of the Public Protection Branch and its respective specialist units, but that it is a fundamental part of the duties of all police officers and police staff. Police have a duty and responsibility to investigate criminal offences committed against children. The child’s welfare is the overriding priority and investigations should be carried out sensitively, thoroughly and professionally. Safeguarding Children C7 sits within Crime Operations Department and is the Public Protection Branch (PPB). C7 has a number of functions, some of which you will learn about during the SOTP but these notes will cover your role in child protection and how this links in with referrals to the Central Referral Unit (CRU) of C7 and respective Child Abuse Investigation Units (CAIU). CRU is the gateway into C7 and they deal with the initial discussion with Social Services and decide on which department/unit is best placed to conduct the investigation. Child protection is everyone’s business. As police officers, we have a statutory responsibility for child protection as do social workers. As an operational police officer you may receive a report of child abuse from a member of the public, a parent, directly from a child, or by your own observations. How you deal with this will make all the difference in protecting children and enhancing public confidence. Your primary function is to keep the child safe. OFFICIAL [PUBLIC] Page 40 It is your responsibility to take action and the welfare of the child is paramount. You must never leave the child unsupervised with the alleged offender and you must take immediate safeguarding action. Your professional curiosity to remain vigilant and make relevant enquiries to assess risk, will be crucial to your ability to keep children safe. There are also two strategies Operation Encompass – sharing information with schools, and Violence against Women and Girls (VAWG) STRATEGY (Non-examinable) Operation Encompass The scheme is a partnership between the Police Service of Northern Ireland, the Education Authority, the Safeguarding Board of Northern Ireland and schools. If officers attend a domestic abuse call, and children are present, Operation Encompass allows the officer to pass on relevant information to the safeguarding team at the child’s school before 9am the following morning, so the right support can be put in place. “The scheme allows us to share information with schools in quick time so that we can best protect and support children through times that are incredibly difficult for them. School is often seen as a ‘safe place’ for a child in these circumstances and the support and understanding that teachers can provide should never be underestimated. We are delighted that this scheme is now fully operational across all schools in Northern Ireland. We are working in partnership to break the cycle of abuse.” Violence against Women and Girls This is a key issue for policing both in Northern Ireland and across the UK. As a police service we will be working to better recognise, understand, address and reduce the harm and fear experienced by women and girls.” In Northern Ireland over the last five years, 28 women and girls were murdered by men. Many others faced other forms of male violence, abuse and intimidation both within their own homes and the wider community and our statistics show that we receive a call of domestic abuse once every 16 minutes. Chief Superintendent McNally commented; “Whilst recognising much has already been done to prevent violence against women and girls, more can and should be done, and we are committed to creating an environment where women and girls can feel safe and be safe. “The Violence Against Women and Girls Action Plan is set out to be delivered over 7 years and sets OFFICIAL [PUBLIC] Page 41 out, for the first time in Northern Ireland, a clear roadmap for how we will play our part to tackle this societal issue focusing on prevention, early intervention and enhanced support for victims in years one and two, with the primary objective to build trust and confidence in policing. It follow the National Police Chief’s Council’s national strategy on how police can support women and girls who are victims of violence and harassment focusing on three pillars of building trust and confidence in policing, relentless perpetrator pursuit and supporting victims, and creating safer spaces for women and girls. Child Abuse Child abuse is a generic term encompassing all situations involving ill-treatment of children. Child abuse can be divided into 5 categories: 1. Neglect. 2. Physical abuse. 3. Emotional abuse. 4. Sexual abuse. 5. Exploitation. 1. Neglect Neglect can be described as the persistent failure to meet a child’s physical, psychological and emotional needs and it is likely to cause significant harm. ‘Neglect’ is not the actual offence but a component of the offence of ‘cruelty’ under Section 20 Children and Young Persons Act (Northern Ireland) 1968 (Cruelty to persons under sixteen) which states; “If any person who has attained the age of sixteen and has responsibility for any child or young person under that age, wilfully, assaults, ill-treats, neglects, abandons or exposes him, or causes or procures him to be assaulted, ill- treated, neglected, abandoned or exposed in a manner likely to cause him unnecessary suffering or injury to health (including to or loss of sight, or OFFICIAL [PUBLIC] Page 42  hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of an offence.” Section 20 – Explanation To commit this offence the offender must be over 16 years of age and the child they are responsible for must be under 16 years of age. The offender must wilfully assault, ill- treat, neglect, abandon or expose the child, or cause or procure him to be treated as such, in a manner likely to cause unnecessary suffering, or injury to health. Example Claire, a single mum, spends the family credit money on her Saturday nights out on alcohol for herself. The result of this is that her children have not been properly fed for some time and are now without some of their basic needs such as food, clothing and warmth. Claire has wilfully made the decision to direct her resources in the wrong direction and “shall be deemed to have neglected her children in a manner likely to cause injury to health”. Key Learning Point Offender = over 16 Child = under 16 ‘Wilfully’ means it is a deliberate act or omission. It is not accidental. The harm does not actually have to have happened. The risk is enough. OFFICIAL [PUBLIC] Page 43 2. Physical Abuse Is deliberately physically hurting a child. It might take a variety of different forms, including hitting, biting, pinching, shaking, throwing, poisoning, burning or scalding, drowning or suffocating a child. This is not an offence definition as there isn’t a specific offence of ‘physical abuse’, but physical abuse against children is primarily covered by assault offences within the Offences against the Person Act 1861. This will be covered in your assault lesson as part of the Public Protection and Safety Module. To dispel any myths - It is a criminal offence to assault a child. Prior to 2006 there was a presumption that parents were entitled to discipline their children as long as it was reasonable. Article 2 of The Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006 brought into legislation that any assault of a child is a criminal offence. Therefore, any assault resulting in AOABH level injury or worse, is an offence with no defence available. However, a common assault (S.42 Offences Against the Person Act 1861) is still an offence, but there is a defence available which is one of reasonable punishment (for common assault only). This does not mean that the police will be deciding on what is reasonable punishment or not. It is a defence that the suspect can raise and it is for the PPS to decide whether or not a prosecution is brought and, if so, it is for a court/jury to decide whether the defendant’s punishment of the child was reasonable or not. 3. Emotional Abuse There is no criminal offence of emotional abuse, but it will prevalent with all other forms of abuse. It can be described as the persistent emotional ill- treatment of a child, such as to cause severe and persistent adverse effects on the child’s emotional development. Conveying to a child that they are worthless, inadequate or unloved. It can also include exploitation, corruption, causing children to feel frightened, or in danger. Smothering a child’s development through over-protection, can also be emotional abuse. OFFICIAL [PUBLIC] Page 44 Whilst Police are not clinically trained practitioners in identifying emotional disorders, it is important to question the reasons behind children’s behaviour. If you’ve concerns about a child’s emotional well-being, and no criminal offences are suspected then you should refer the matter to social services. Example Police attend a domestic dispute reported by neighbours. On arrival police observe that the parents are intoxicated, crockery has been smashed and music is blaring. Police check on the two children upstairs and see that they are asleep and appear to be unaware of the domestic dispute between their parents. It would be questionable as to why the children are able to sleep through such a dispute and it is reasonable for the police officer to suspect that this is possibly a regular occurrence which has become the norm and that the children are being subjected to emotional abuse by the behaviour of their parents. The officer’s concerns regarding the situation the children were subjected to would need to, be referred to social services. 4. Sexual Abuse Sexual abuse occurs regardless of whether the child is aware of what is happening or not. It may involve direct sexual contact, or inciting sexual activity, as well as non- contact offences such as the viewing of indecent images of children. The majority of offences for sexual abuse are legislated for in the Sexual Offences (Northern Ireland) Order 2008. If you suspect child abuse you must take immediate action to safeguard their welfare. This may involve taking the child into police protection or arresting the offender for example. It may be as straight forward as arranging for a suitable adult (relative) to care for the child pending slower time action from Central Referral Unit (RCU) and Social Services. This is a judgement call, based on the facts as they are presented. The most important thing is to ensure that the child is protected and not placed at further risk. You must not think that ‘someone else’ will see to things. You must act! OFFICIAL [PUBLIC] Page 45 5. Exploitation Exploitation is the intentional ill-treatment, manipulation or abuse of power and control over a child or young person. Selfish or unfair advantage of a child or young person or situation, for personal gain. It may manifest itself in many forms, such as child labour, slavery, servitude, and engagement in criminal activity, begging, benefit or other financial fraud, or child trafficking. Exploitation can also be sexual in nature. Whilst exploitation is not a specific offence in its own right the primary offence may well be contained within other legislation covering sexual offences, assault or trafficking for example. Removal and accommodation of children by police in cases of emergency This piece of legislation enables police officers to take a child into police protection, in order to safeguard the child deemed at risk of significant harm. Article 65 states: (1) Where a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, he may— (a) Remove the child to suitable accommodation and keep him there; or (b) Take such steps as are reasonable to ensure that the child's removal from any hospital, or other place, in which he is then being accommodated is prevented. (2) A child with respect to whom a constable has exercised his powers under this Article is referred to as having been taken into police protection. (3) As soon as is reasonably practicable after taking a child into police protection, the constable shall secure that the case is inquired into by a designated officer. (Inspector) Article 65(1) Children (Northern Ireland) Order 1995 OFFICIAL [PUBLIC] Page 46 ‘Constable’ Means any rank of police officer and they do not have to be in uniform. ‘Child’ A person under 18 years of age. ‘Reasonable Cause to Believe’ This condition is harder to satisfy than ‘reasonable grounds to suspect’. The basis for an actual belief as opposed to suspicion needs to be set out. This gives an indication of the importance of the assessment of risk and the ability to rationalise why this action was followed. Police Protection is not to be taken lightly. ‘Otherwise be Likely’ This is the ‘necessity’ aspect – your reasonable belief is that if police protection is not exercised then the child would suffer significant harm. ‘Significant Harm’ There is no absolute definition for the term significant harm. The significant harm will be a matter for assessment or judgement. In relation to each individual child in the circumstances, their health or development will be compared with that which could reasonably be expected of a similar child in the circumstances. ‘Suitable Accommodation’ A police station is not suitable accommodation. Taking a child to a police station while you do other important things means you are looking after your interests not the child’s. Preferably Social Services or a family member will provide suitable accommodation whilst enquires are made. Social Services have a statutory duty to provide suitable accommodation for a child, which often means they are placed with a suitable adult (usually family) to limit distress and disruption for the child. In the rare case that a police establishment is the only option then Garnerville or Mahon Road (or similar police establishment) should be used, but never a police station. OFFICIAL [PUBLIC] Page 47 ‘Keep’ ‘Police protection’ lasts for a maximum of 72 hours. Power of Entry There is no power of entry under Article 65 of the Children (NI) Order 1995, but the powers of entry under the following may be applicable:- Article 19 PACE (NI) Order 1989 – saving life or limb. Common Law – to prevent a Breach of the Peace. Example You are called to a hospital where the doctor explains that because of the head injuries the child has to be detained overnight. The parents have consumed alcohol and they will not let the child stay. The head injuries are required to be monitored; are the parents in a fit state to do this and is there reasonable cause to believe the child is likely to suffer significant harm? If you do invoke the powers of part (b) then again the child is in ‘police protection’ and will be for up to 72 hours. If you take a child into police protection you must do the following: Inform the designated officer (Inspector). Inform Public Protection Branch. OFFICIAL [PUBLIC] Page 48  Key learning point You do not need authority from an Inspector to use Article 65. It is your decision. A child for this legislation means anyone under 18. You must inform the designated officer ASAP (Inspector). Inform Public Protection Branch. Child Abduction The Children (Northern Ireland) Order 1995 refers to under 18’s in care and the Child Abduction (Northern Ireland) Order 1985 refers to under 16’s abducted by parents or others. Both offences are covered below. Offence – Abduction - Article 68 the Children (NI) Order 1995 Abduction of children in care. A person shall be guilty of an offence if, knowingly and without lawful authority or reasonable excuse, he:-  Takes a child to whom this Article applies away from the responsible person;  Keeps such a child away from the responsible person; or  Induces, assists or incites such a child to run away or stay away from the responsible person. This Article applies in relation to a child who is:-  in care;  the subject of an emergency protection order; or  in police protection, OFFICIAL [PUBLIC] Page 49 “The responsible person” means any person who for the time being has care of him, by virtue of the care order, the emergency protection order, or Article 65, as the case may be. This can mean the police officer who has taken the child into police protection (Article 65). This legislation provides an added layer of protection to those children (under 18) in care, subject of an emergency protection order, or police protection. Remember, Article 65(1) (2) Children (Northern Ireland) Order 1995 allows you to take reasonable steps to prevent a child being removed. Section 3 of The Criminal Law Act 1967 also permits you to use reasonable force to prevent crime. If someone manages to remove the child then they would have committed an offence under Article 68 Children (NI) Order 1995 (which is covered below) and your Article 26 power of arrest would apply. Your priority is to safeguard the child at all times. Key learning point For Article 68 to apply the child must meet one of the following three criteria: In care Subject to an emergency protection order In police protection (Art 65 has been used) Offence – Abduction – The Child Abduction (Northern Ireland) Order 1985 Article 3(1) of this Order covers situations where a ‘person connected’ with a child under the age of 16 takes or sends the child out of the United Kingdom, without the ‘appropriate consent’. A ‘person connected’ with a child is generally a parent, guardian or person with custody of the child and the ‘appropriate consent’ is that of the other parent, the guardian, person with custody of the child or of a court. This offence is normally committed where parents (or family members acting as guardians) take or send the child out of the UK. OFFICIAL [PUBLIC] Page 50 Article 4(1) of this order this legislation relates to where any person, without lawful authority or reasonable excuse, takes or detains a child under the age of 16 either:  To remove the child from the lawful control of any person having lawful control of the child, or  To keep the child out of the lawful control of any person entitled to have lawful control. Key learning point Articles 3 and 4 of The Child Abduction (NI) Order 1985 applies to under 16’s. Article 3 applies to parents or guardians taking or sending the child out of the UK. Article 4 applies to ‘other persons’ (those other than mentioned in Art 3) taking or detaining a child. Article 68 of The Children (NI) Order 1995 applies to under 18’s. 3 and Article 26 PACE power of arrest applies. Child Abduction Warning Notice (CAWN) In some instances individuals may allow children to be in their company, for example, to stay in their home or to associate with them in other places, even arranging for transport without informing the child’s parent/guardian/carer of their intentions. They either directly or indirectly encourage them to go missing or to stay away from their parents/guardians/carers. This can lead to an increase in the number of people reported missing and children being subject to potential abuse. OFFICIAL [PUBLIC] Page 51 Some of these individuals actually target young people for the purpose of exploiting their vulnerabilities and as a result serious offences may be committed against these children. CAWN may result in the severance or disruption of contact between the child/young person and the person of concern. Whilst used as a way of disrupting exploitative behaviour, the issuing of a CAWN can also assist evidentially in the future prosecution pursuant to Article 4 Child Abduction (NI) Order 1985 or Article 68 Children (NI) Order 1995. CAWN may be used to prevent a person successfully raising defences (age of child and permission from parent/carer) should they be charged with either of the above offences. As a first responding officer you are the eyes and ears on the ground and it is important to submit CI1’s/sightings of those children who are potentially at risk and of the person who is of concern. The decision to issue a CAWN on a person is made by the Sergeant in the relevant PPB. It is important to liaise with the PPB and make them aware of your concerns. Public Protection Branch (PPB) Child Sexual Exploitation (CSE) CSE is the intentional ill-treatment, manipulation or abuse of power and control over a child or young person and includes taking selfish or unfair advantage of a child or young person or situation, for personal gain. It may manifest itself in many forms such as child labour, slavery, servitude, and engagement in criminal activity, begging, benefit or other financial fraud or child trafficking. It extends to the recruitment, transportation, transfer, harbouring or receipt of children for the purpose of exploitation. Exploitation can be sexual in nature. CSE is not an offence but is an aspect of exploitation (a form of child abuse). It is a context where offending can occur. Offences will mainly come under the Sexual Offences (NI) Order 2008. The key factor that identifies cases as CSE is the concept of ‘exchange’. The fact that OFFICIAL [PUBLIC] Page 52 someone coerces, or manipulates a child into engaging in sexual activity in return for something they need, desire and / or for the gain of those perpetrating or facilitating the abuse. The something received by the child or young person can include both tangible items and / or more intangible “rewards” or “benefits”, such as perceived affection, protection or sense of value or belonging. Just because a young person receives something they need or desire, does not mean they are not being abused. Taking advantage of this need or desire, and making the young person think they are in control because they are getting something in return, is part of the abusive process. CSE should not be viewed in isolation from the more inclusive concepts of sexual abuse and sexual violence and other relevant concepts such as domestic violence, trafficking or going missing from home or care, in order to ensure that young people suffering these forms of violence are not overlooked. Identifying CSE Many children and young people misinterpret such experiences as consensual and fail to recognise the exploitation involved. This can lead to misplaced feelings of loyalty or shame on the part of victims, who will consequently not disclose this information. Just because a young person does not see themselves as a victim, doesn’t mean that they aren’t. Our statutory responsibility to protect children and young people from abuse extends to all under 18s, irrespective of whether or not they view themselves as victims of abuse. Research shows that young people rarely report abuse through CSE. Most concerns are identified by professionals, family or friends or by proactive investigation on the part of the authorities rather than self-disclosure on the part of the victim. In recognition of this good practice guidance on CSE states that all areas should assume that CSE is occurring within their area unless they have evidence to indicate otherwise. Be alert to the likelihood of this and plan to protect children and young people accordingly. OFFICIAL [PUBLIC] Page 53 A key element is the having the awareness of potential indicators of CSE as outlined below (this list is not exhaustive): Acquisition of money, clothes, mobile phone etc. without explanation Leaving home/care without permission Persistently going missing or returning home late Receiving lots of texts/phone calls prior to leaving Agitated/distressed prior to leaving home/care Returning distraught/dishevelled or under the influence of substances Truanting from school Inappropriate sexualised behaviour for age Physical symptoms or infections e.g. bruising, bite marks, STIs Concerning use of the internet Entering or leaving cars driven by unknown adults or by taxis New peer groups Significantly older “boyfriend” or “girlfriend” Increasing secrecy around behaviour Low self esteem Self-harm and other expressions of despair Evidence or suspicion of substance misuse It is key to note that the presence of these indicators does not necessarily mean that CSE is occurring, more importantly, nor does their absence mean that it is not. Just because a young person does not recognise the abusive nature of their situation does not mean that they are not being abused. Many young people may not see the exploitative nature of their experience until months or years later when they are extricated from the situation and able to reflect on the manipulation and power imbalance at play. OFFICIAL [PUBLIC] Page 54 The Sexual Offences (Northern Ireland) Order 2008 This section of the notes deals with sexual offences against children. This legislation covers offences committed against children under 18, 16 and 13. Consent A person must be over 16 years of age to consent to sexual activity (16 and above). This means anyone aged 15 years of age and below cannot legally consent. Therefore, in the following offences it is irrelevant whether the child might have consented and this legislation is gender neutral. The legislation also has specific offences for under 13s. The distinction between offences whereby the victim is under 13 and those where the victim is over 13, but under 16, is that there is no reference to any reasonable belief of age by the offender when applied to under 13s. An understanding of certain terms within the Sexual Offences (NI) Order 2008 is essential. ‘Consent’: A child under 16 years of age can never legally consent to sexual activity. Meaning of ‘Sexual’ For the purposes of this Order, except Article 22A (sexual communication with a child) or Article 75 (sexual activity in a public lavatory), penetration, touching or any other activity is sexual if a reasonable person would consider that:- a Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or OFFICIAL [PUBLIC] Page 55  b Because of its nature, it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both), it is sexual. Key learning point If the activity would not appear to a reasonable person to be sexual then it will not meet the criterion and, irrespective of any sexual gratification the person may derive from it, the activity will not be sexual. Therefore, any weird or exotic fetishes that no ordinary person would regard as being sexual or potentially sexual will not be covered. Meaning of ‘Touching’ ‘Touching’ includes: With any part of the body. With anything else. Through anything. The following offences are all contained with the Sexual Offences (NI) Order 2008. Rape of a Child under 13 Article 12 (1) A person commits an offence if – a he intentionally penetrates the vagina, anus or mouth of another person with his penis, and b the other person is under 13. OFFICIAL [PUBLIC] Page 56  (2) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life. Key learning point For this offence to apply, the act of rape must have occurred and the victim must be under 13. The meaning of rape is the same as the adult offence under Article 5. Remember, consent does not apply to under 16s. A child under 16 can never consent to any form of sexual activity. It is the law. Rape can only be committed by a male but other sexual offences can be committed across genders. Assault of a Child under 13 by Penetration Article 13 (1) A person commits an offence if – a he intentionally penetrates the vagina or anus of another person with a part of his body or anything else, b the penetration is sexual, and c the other person is under 13. (2) A person guilty of an offence under this Article is liable, on conviction on indictment, to imprisonment for life. Key learning point It is important to know that this offence only includes penetration of the vagina or anus and not the mouth. OFFICIAL [PUBLIC] Page 57 Sexual Assault of a Child under 13 Article 14 (1) A person commits an offence if – a. he intentionally touches another person, b. the touching is sexual, and c. the other person is under 13. (2) A person is guilty of an offence under this Article is liable – a on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b on conviction on indictment, to imprisonment for a term not exceeding 14 years. Causing or Inciting a Child under 13 to Engage in Sexual Activity Key Learning Point The elements of this offence are the same as the adult offence save that consent is not a defence. Article 15 (1) A person commits an offence if – a. he intentionally causes or incites another person (B) to engage in an activity, b. the activity is sexual, and c. B is under 13. (2) A person guilty of an offence under this Article, if the activity caused or incited involved OFFICIAL [PUBLIC] Page 58  a. penetration of B’s anus or vagina, b. penetration of B’s mouth with a person’s penis, c. penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or d. penetration of a person’s mouth with B’s penis, is liable, on conviction on indictment, to imprisonment for life. (3) Unless paragraph (2) applies, a person guilty of an offence under this article is liable - a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 14 years. Key learning point The essence of the offence of incitement is the encouragement of a person under 13 to engage in sexual activity. It is that encouragement which must be intentional or deliberate. If the sexual activity occurs, then this would meet the ‘causing’ element of this offence but for incitement the act does not have to happen. It is the incitement (encouragement) which is the important element. Sexual Offences against Children under 16 The following offences refer to sexual offences against children under 16: Sexual Activity with a Child Article 16 (1) A person aged 18 or over (A) commits an offence if – OFFICIAL [PUBLIC] Page 59  a. he intentionally touches another person (B), b. the touching is sexual, and c. either - i. B is under 16 and A does not reasonably believe that B is 16 or over, or ii. B is under 13. (2) A person guilty of an offence under this article, if the touching involved – a. penetration of B’s anus or vagina with a part of A’s body or anything else, b. penetration of B’s mouth with A’s penis, c. penetration of A’s anus or vagina with a part of B’s body, or d. penetration of A’s mouth with B’s penis, is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years. (3) Unless paragraph (2) applies, a person guilty of an offence under this Article is liable— a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 14 years. Key learning point This offence is the same as Article 14 but you will note that there is now a reference to the belief of the victim’s age. This means that the defendant can raise a defence that he reasonably believed that the child was 16 years of age or over. This is the same for offences under Articles 16 to 19. OFFICIAL [PUBLIC] Page 60 Causing or inciting a child to engage in sexual activity. Article 17 (1) A person aged 18 or over (A) commits an offence if – a. he intentionally causes or incites another person (B) to engage in an activity, b. the activity is sexual, and c. either – i. B is under 16 and A does not reasonably believe that B is 16 or over, or ii. B is under 13. (2) A person guilty of an offence under this Article, if the activity caused or incited involved a. penetration of B’s anus or vagina, b. penetration of B’s mouth with a person’s penis, c. penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or d. penetration of a person’s mouth with B’s penis, i. is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years. (3) Unless paragraph (2) applies, a person guilty of an offence under this Article is liable – a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 14 years. OFFICIAL [PUBLIC] Page 61 Engaging in sexual activity in the presence of a child Article 18 (1) A person aged 18 or over (A) commits an offence if – a. he intentionally engages in an activity, b. the activity is sexual, c. for the purpose of obtaining sexual gratification, he engages in it – i. when another person (B) is present or is in a place from which A can be observed, and ii. knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and d. either - i. B is under 16 and A does not reasonably believe that B is 16 or over, or ii. B is under 13. (2) A person guilty of an offence under this Article is liable – a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 10 years. Key learning point The activity must be sexual and intentional and must be in order to obtain sexual gratification (for the defendant). The gratification does not have to be immediate i.e. a defendant may cause a child to watch a sexual act to put the child in a frame of mind for future sexual abuse. OFFICIAL [PUBLIC] Page 62 Causing a Child to Watch a Sexual Act Article 19 (1) A person aged 18 or over (A) commits an offence if – a. for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity, b. the activity is sexual, and c. either – (i) B is under 16 and A does not reasonably believe that B is 16 or over, or (ii) B is under 13. (2) A person guilty of an offence under this Article is liable – a. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; b. on conviction on indictment, to imprisonment for a term not exceeding 10 years. Key Learning Point This offence is concerned with intentionally causing a child to watch a third person engaging in sexual activity or to look at an image of a person engaging in sexual activity. OFFICIAL [PUBLIC] Page 63