What can lawyers in the Family Court take from Baroness Casey’s National Audit on Group-Based Child Sexual Exploitation and Abuse?

The report of the National Audit on Group-Based Child Sexual Exploitation and Abuse (“grooming gangs”) was published on 16^th June. The Government confirmed the same day that action would be taken on each of the Audit’s 12 recommendations through introduction of legislation, police operations to identify perpetrators and a new national inquiry alongside data collection and research and identification of those at risk.

The audit itself speaks most directly to the responses of the criminal justice system and its treatment of children as the victims of child sexual exploitation. However, it also identifies issues such as a mismatch between police reports of child sexual abuse (which are rising) and children’s services reports (which are falling). This begs further exploration about how effectively risk is being identified by those who are tasked with safeguarding vulnerable young people, particularly those who are displaying warning signs such as going missing for hours or days at a time. The audit identifies children who become looked after by local authorities as particularly at risk of exploitation, going so far as to say that being in care is a risk factor for abuse rather than a safeguard. In response, the Home Secretary announced “new action across children’s services and other agencies to identify children at risk”, the details of which will follow.

As lawyers in the Family Court we are no strangers to the context and consequences of child sexual exploitation and abuse. Child victims of exploitation are the subject of care proceedings and applications under the inherent jurisdiction for deprivation of their liberty. They are also on occasion, as children themselves, the respondents to applications for care orders in respect of their own babies. These cases can present the difficult conundrum of identifying the victim of exploitation as a respondent to an application alongside their abuser.

There are several issues identified in the audit that could be considered relevant in the context of Family Court proceedings relating to children but there are two in that my view have particular import.

Firstly, the audit identifies an issue with “the adultification of child victims”. On the one hand this is described by reference to a care system that “almost fast tracks children into adulthood – living in residential settings or semi-independent housing” thereby rendering them particularly vulnerable. On the other hand it identifies it as a form of bias when considering individual children, noting:

“The DfE statutory guidance, working together to safeguard children defines a child as anyone under the age of 18. Adultification can occur when people – including professionals view a child as more ‘grown up’ or ‘adult’. It is described by safeguarding experts as occurring when notions of innocence and vulnerability always grounded in bias, where aspects of a child’s personal characteristics, socio-economic background or experiences are met with discriminatory responses. Rather than being a seen as a child experiencing abuse or exploitation, for example, they may be viewed as responsible. Complicit, or more resilient and able to withstand maltreatment” [p130, para 6.3].

It is not difficult to see the risk of “adultification” of children in proceedings before the Family Courts. The Family Court must necessarily consider the children involved in proceedings, either as the subject child or as the parent of a subject child more broadly than as the victims of sexual exploitation and abuse. Children who are competent to instruct their own lawyers may positively assert resilience or even complicity as a part of their case. The Court in these cases will need to tread a tightrope between respect for the child’s position and the risk that accepting this position may lead to the “adultification” that the audit describes.

Secondly, the Audit’s first recommendation is that the law in England and Wales should be changed so adults who intentionally penetrate the vagina, anus or mouth of a child under 16 must be charged with rape. This recommendation addresses what in the criminal arena may be a grey area in relation to children between the ages of 13-16 whose perceived “consent” to sexual activity could lead to their abusers being charged with the less serious criminal offences. The existence of this grey area has undoubtedly been reflected in the approach of the Family Court to assessment of risks and quantification of harm. A more robust position in the criminal justice system may embolden professionals to act more decisively in relation to these issues. Hitherto arguments as to the nuances of a particular situation could easily detract from basic proposition that a child under the age of 16 is not a consenting partner in a sexual relationship with an adult.

Baroness Casey’s Audit was commissioned in response to a series of highly publicised prosecutions of “grooming gangs”. Her recommendations, if implemented, together with the new national inquiry announced by the Home Secretary, will have far wider reaching implications for the way in which those tasked with safeguarding vulnerable people approach these issues in the future.