Part 4: Specific support needs and concerns 175 National Guidance for Child Protection in Scotland 2021 Version 1.0 September 2021 4.252 Section 37 of the Sexual Offences (Scotland) Act 2009 creates the offence of older children (aged between 13 and 16 years) engaging in sexual conduct with or towards one another. Assessing the risk of significant harm, deciding whether to hold an IRD and planning the next steps should include consideration of: • any power imbalance between the persons involved • the age, including any age difference, of the persons involved • whether there was conduct involving overt aggression, manipulation, coercion or bribery • any disinhibiting use of substances, under pressure or encouragement from a more dominant person or persons • the child’s use of substances contributing to risk of harm • attempts to secure secrecy having been made by the dominant person, beyond what might be usual in a teenage relationship • previous concerns recorded by police/health/social work • persons involved denying, minimising or accepting concerns • evidence of ‘grooming’ 4.253 Practitioners must be aware of the power and trust inherent in their own position and communication with each child. They must be aware of the influence of their own language, attitudes and boundaries 4.254 While consent to sexual activity under age 13 is not possible, support for children’s learning should reinforce the message that ‘consent’ refers to a mutual process; that verbally obtained consent is necessary but not sufficient; and that it is always necessary to be sensitive to another person’s feelings and fears, which may be communicated in an on-going process, not only in words but also in body language and non-verbal responses. Consent can be withdrawn at any time; that consent is required every time sexual activity takes place, even if a person has previously consented. 4.255 Power imbalances affect a child’s understanding of consent and must form part of a practitioner’s consideration when balancing issues of confidentiality, welfare and protection. A child’s age, sexual identity, gender, disability, self-perception and ability to understand and exercise choice will all affect consent. Power imbalances can be created by fear, manipulation or threat. They can be created by differences in sexual knowledge, or by the dynamic when a child has been feeling excluded or unwanted. The social context and location of ‘consent’ may dismantle a child’s ability to stand alone or stand aside and choose. Children may not understand that exploitative behaviour can constitute abuse. 4.256 If sexual activity is taking place/has taken place within a safe and mutually respectful relationship, then confidentiality should generally be maintained as there is a high threshold for when the duty of confidentiality should be outweighed. The facts and circumstances of each case must be carefully considered before deciding if the public interest favours the disclosure of confidential information.