Sexual Offences Act 2003, section 21

Positions of trust

Part 1 Sexual Offences

[F18 (1)For the purposes of sections 16 to 19, a person (A) is in a position of trust in relation to another person (B) if—

(a)any of the following subsections applies, or

(b)any condition specified in an order made by the Secretary of State is met.

(2)This subsection applies if A looks after persons under 18 who are detained in an institution by virtue of a court order or under an enactment, and B is so detained in that institution.

(3)This subsection applies if A looks after persons under 18 who are resident in a home or other place in which—

(a)accommodation and maintenance are provided by an authority [F19 in accordance with section 22C(6)F19] of the Children Act 1989 (c. 41) [F20 or section 81(6) of the Social Services and Well-being (Wales) Act 2014F20] F21 ..., or

(b)accommodation is provided by a voluntary organisation under section 59(1) of [F22 the Children Act 1989F22] F23 ...,

and B is resident, and is so provided with accommodation and maintenance or accommodation, in that place.

(4)This subsection applies if A looks after persons under 18 who are accommodated and cared for in one of the following institutions—

(a)a hospital,

(b)[F24 in Wales,F24] an independent clinic,

(c)a care home, F25...

(d)a community home, voluntary home or children’s home, [F26 orF26]

(e)a home provided under section 82(5) of the Children Act 1989, F27...

F28(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F29 (g)a place in Wales at which a care home service is provided,F29]

[F30 (h)premises in Wales at which a secure accommodation service is provided,F30]

and B is accommodated and cared for in that institution.

(5)This subsection applies if A looks after persons under 18 who are receiving education at an educational institution and B is receiving, and A is not receiving, education at that institution.

F31(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)This subsection applies if A is engaged in the provision of services under, or pursuant to anything done under—

(a)sections 8 to 10 of the Employment and Training Act 1973 (c. 50), or

[F32 (b)section 68, 70(1)(b) or 74 of the Education and Skills Act 2008,F32]

and, in that capacity, looks after B on an individual basis.

(8)This subsection applies if A regularly has unsupervised contact with B (whether face to face or by any other means)—

(a)in the exercise of functions of a local authority under section 20 or 21 of the Children Act 1989 (c. 41) [F33 or section 76 or 77 of the Social Services and Well-being (Wales) Act 2014F33] , F34...

F34(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)This subsection applies if A, as a person who is to report to the court under section 7 of the Children Act 1989 F35... on matters relating to the welfare of B, regularly has unsupervised contact with B (whether face to face or by any other means).

(10)This subsection applies if A is a personal adviser appointed for B under—

(a)section 23B(2) of, or paragraph 19C of Schedule 2 to, the Children Act 1989, F36... [F37 orF37]

[F38 (aa)section 106(1) of the Social Services and Well-being (Wales) Act 2014 in respect of category 1 or 2 young persons within the meaning of that Act,F38]

F36(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and, in that capacity, looks after B on an individual basis.

(11)This subsection applies if—

(a)B is subject to a care order, a supervision order or an education supervision order, and

(b)in the exercise of functions conferred by virtue of the order on an authorised person or the authority designated by the order, A looks after B on an individual basis.

(12)This subsection applies if A—

(a)is an officer of the Service [F39 or Welsh family proceedings officer (within the meaning given by section 35 of the Children Act 2004)F39] appointed for B under section 41(1) of the Children Act 1989,

(b)is appointed a children’s guardian of B under rule 6 or rule 18 of the Adoption Rules 1984 (S.I. 1984/265), F40...

(c)is appointed to be the guardian ad litem of B under rule 9.5 of the Family Proceedings Rules 1991 (S. I. 1991/1247) F41..., [F42 orF42]

[F43 (d)is appointed to be the children’s guardian of B under rule 59 of the Family Procedure (Adoption) Rules 2005 (S.I. 2005/2795) or rule 16.3(1)(ii) or rule 16.4 of the Family Procedure Rules 2010 (S.I. 2010/2955),F43]

and, in that capacity, regularly has unsupervised contact with B (whether face to face or by any other means).

(13)This subsection applies if—

(a)B is subject to requirements imposed by or under an enactment on his release from detention for a criminal offence, or is subject to requirements imposed by a court order made in criminal proceedings, and

(b)A looks after B on an individual basis in pursuance of the requirements.F18]

Definitions used in section 21 14

court

(2) In sections 92 and 103A(1) of this Act, and section 345 of the Sentencing Code, “court” includes a service court.

Defined in s.137(2) · see it in the full Act
authority

“authority”—

(a)

in relation to England and Wales, means a local authority;

(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defined in s.22(5) · see it in the full Act
hospital

“hospital” means—

(a)

a hospital as defined by section 275 of the National Health Service Act 2006, or section 206 of the National Health Service (Wales) Act 2006; or

(b)

any other establishment—

(i)

in England, in which any of the services listed in subsection (6) are provided; and

(ii)

in Wales, which is a hospital within the meaning given by section 2(3) of the Care Standards Act 2000;

Defined in s.22(5) · see it in the full Act

(6) The services referred to in paragraph (b)(i) of the definition of “hospital” are as follows—

(a)medical treatment under anaesthesia or intravenously administered sedation;

(b)dental treatment under general anaesthesia;

(c)obstetric services and, in connection with childbirth, medical services;

(d)termination of pregnancies;

(e)cosmetic surgery, other than—

(i)ear and body piercing;

(ii)tattooing;

(iii)the subcutaneous injection of a substance or substances into the skin for cosmetic purposes; or

(iv)the removal of hair roots or small blemishes on the skin by the application of heat using an electric current.

Defined in s.22(6) · see it in the full Act
independent clinic

“independent clinic” has—

(a)

. . . the meaning given by section 2 of the Care Standards Act 2000;

(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defined in s.22(5) · see it in the full Act
care home

“care home” means an establishment in England which is a care home for the purposes of the Care Standards Act 2000 (c. 14);

Defined in s.22(5) · see it in the full Act
community home

“community home” has , in relation to England the meaning given by section 53 of the Children Act 1989 ;

Defined in s.22(5) · see it in the full Act
voluntary home

“voluntary home” has—

(a)

in relation to England . . . , the meaning given by section 60(3) of the Children Act 1989. . . .

(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defined in s.22(5) · see it in the full Act
children’s home

“children’s home” has—

(a)

in relation to England ..., the meaning given by section 1 of the Care Standards Act 2000; . . .

(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defined in s.22(5) · see it in the full Act
care home service

“care home service” has the meaning given in Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2);

Defined in s.22(5) · see it in the full Act
secure accommodation service

“secure accommodation service” has the meaning given in Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 ;

Defined in s.22(5) · see it in the full Act
care order

“care order” has—

(a)

in relation to England and Wales, the same meaning as in the Children Act 1989 (c. 41); . . .

(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defined in s.22(5) · see it in the full Act
supervision order

“supervision order” has—

(a)

in relation to England and Wales, the meaning given by section 31(11) of the Children Act 1989 (c. 41); . . .

(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defined in s.22(5) · see it in the full Act
education supervision order

“education supervision order” has—

(a)

in relation to England and Wales, the meaning given by section 36 of the Children Act 1989; . . .

(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Defined in s.22(5) · see it in the full Act
proceedings

(c) “proceedings” includes proceedings before a service court, and

Defined in s.137(1) · see it in the full Act

Cases considering section 21 3

Gjoni v R

[2014] EWCA Crim 691 · 9 April 2014Defines

The court referred to this provision as defining a statutory position of trust and concluded that the appellant was not in such a position. It then considered non-statutory aggravating circumstances separately. (see para [39])

McNally v R.

[2013] EWCA Crim 1051 · 27 June 2013Defines

Although not directly applicable, the statutory definition of positions of trust supported the conclusion that two teenagers of similar age were not in a relationship of trust carrying a duty of care. (see paras [49]-[50])

Smith & Ors, R. v (Rev 1)

[2011] EWCA Crim 1772 · 19 July 2011Defines

The court used the statutory position-of-trust definition to identify the limited circumstances in which a SOPO contact prohibition extending to those under 18 may be justified (see paras [21]; [25]).

What each judgment says about section 21 is in the case-law panel in the full Act.

Explanatory note

35.Section 21 defines “position of trust” for the purposes of the offences in sections 16, 17, 18 and 19. Subsection (1)(b) of section 21 also provides a power for the Secretary of State to specify further conditions that will constitute a position of trust. The power is subject to the affirmative parliamentary procedure (section 137(2)).

36.The conditions in subsections (2) to (5) use the term “looks after”. This term is defined, in broad terms, at subsection (2) of section 22.

37.Subsection (2) applies where the child is detained following conviction for a criminal offence, for example in a secure training centre or a young offenders institution.

38.Subsection (3) applies to a wide range of settings in which young people are accommodated, including foster care; residential care (local authority, private or voluntary, including secure accommodation); and semi-independent accommodation.

39.Subsection (4) covers places where young people with medical conditions, physical or learning disabilities, mental illness or behavioural problems might be accommodated and includes NHS, private and voluntary accommodation.

40.Subsection (5) covers the situation where the child is receiving education in an educational institution. This concept is further explained at subsection (4) of section 22. The effect of that subsection is that where the child is registered at a college but receives education at another college with which the former has arrangements, A will still be in a position of trust in relation to the child if A works at the former college.

41.Subsection (6) covers children's guardians appointed under Northern Ireland legislation.

42.Subsection (7) includes persons who, in their capacity as, for example, Connexions Personal Advisers (“CPAs”) look after children on an individual basis. The definition of looking after a child on an individual basis, for the purposes of this subsection, and subsections (10) (11) and (13) is at section 22(3). The reference at this definition to contact "by other means" (section 22(3)) is designed to include persons such as CPAs whose normal means of providing support to children is by telephone or via the Internet.

43.Subsection (8) covers those who have unsupervised contact with children in the context of their duties under section 20 or 21 of the Children Act 1989 and equivalent legislation in Northern Ireland. Such persons arrange accommodation for children who, for whatever reason, are not being looked after by those who have parental responsibility for them, and check that their welfare is being looked after once such accommodation has been found. They include local authority staff such as social workers and family centre staff who visit the accommodation in which a child has been placed in order to oversee the child’s welfare.

44.Subsection (9) covers persons who have unsupervised contact with children by virtue of their appointment as children and family reporters under section 7 of the Children Act 1989 or under Article 4 of the Children (Northern Ireland) Order 1995. These persons present reports for the court relating to children's welfare.

45.Subsection (10) covers personal advisers who look after children on an individual basis (as defined at section 22(3)) having been appointed by a local authority under the Children Act 1989. Such personal advisers generally provide help and support to children aged 16-17 who have been in local authority care.

46.Subsection (11) covers persons who supervise children pursuant to a care order, supervision order or educational supervision order under various provisions in the Children Act 1989 or the Children (Northern Ireland) Order 1995 and, in that capacity, look after children on an individual basis (again, as defined at section 22(3)).

47.Subsection (12) covers a range of persons who, in the course of their duties, regularly have unsupervised contact with children. These are officers of the Children and Family Court Advisory and Support Service appointed to act as children's guardians under section 41(1) of the Children Act 1989; persons appointed as children's guardians in relation to adoption proceedings under Rules 6 and 18 of the Adoption Rules 1984; and persons appointed under Rule 9.5 of the Family Proceedings Rules 1991 to act as children's guardians ad litem in private law Children Act 1989 proceedings and cases determining wardship.

48.Subsection (13) includes adults who supervise children under bail supervision, a community sentence (for example a probation order, combination order, community service order, supervision order, attendance centre order) and children under conditions following release from detention resulting from a criminal conviction (e.g. those released on licence from a young offenders institution) This would include members of Youth Offending Teams provided they have sufficient contact and connection with the child or someone providing counselling or drug rehabilitation services to the child pursuant to the terms of a court order.

All the explanatory notes for the Act

Amendments and notes

26 notes from legislation.gov.uk

Amendments

  1. F18Ss. 16-24 repealed (N.I.) (2.2.2009) by The Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)), arts. 1, 78(b), Sch. 3 (with Sch. 2 par. 1); S.R. 2008/510, art. 2
  2. F19Words in s. 21(3)(a) substituted (E.W.) (1.4.2011 for E., 6.4.2016 for W.) by Children and Young Persons Act 2008 (c. 23), ss. 8(2), 44(4), Sch. 1 para. 15; S.I. 2010/2981, art. 4(a); S.I. 2016/452, art. 2(b)
  3. F20Words in s. 21(3)(a) inserted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 202(a)
  4. F21Words in s. 21(3)(a) omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(2)(a); S.R. 2008/510, art. 2
  5. F22Words in s. 21(3)(b) substituted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 202(b)
  6. F23Words in s. 21(3)(b) omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(2)(b); S.R. 2008/510, art. 2
  7. F24Words in s. 21(4)(b) inserted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 13(2)
  8. F25Words in s. 21(4)(c) omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(3)(a); S.R. 2008/510, art. 2
  9. F26Word in s. 21(4)(d) inserted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(3)(b); S.R. 2008/510, art. 2
  10. F27Word in s. 21(4)(e) omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(3)(c); S.R. 2008/510, art. 2
  11. F28S. 21(4)(f) omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(3)(d); S.R. 2008/510, art. 2
  12. F29S. 21(4)(g) and word inserted (2.4.2018) by The Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Regulations 2018 (S.I. 2018/195), regs. 2(1), 21
  13. F30S. 21(4)(h) inserted (29.4.2019) by The Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Regulations 2019 (S.I. 2019/772), regs. 1(2), 24
  14. F31S. 21(6) omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(4); S.R. 2008/510, art. 2
  15. F32S. 21(7)(b) substituted (26.1.2009) by Education and Skills Act 2008 (c. 25), ss. 169(1), 173(4), Sch. 1 para. 81; S.I. 2008/3077, art. 4(g)
  16. F33Words in s. 21(8)(a) inserted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 202(c)
  17. F34S. 21(8)(b) and preceding word omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(5); S.R. 2008/510, art. 2
  18. F35Words in s. 21(9) omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(6); S.R. 2008/510, art. 2
  19. F36S. 21(10)(b) and preceding word omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(7); S.R. 2008/510, art. 2
  20. F37Word in s. 21(10)(a) inserted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 202(d)
  21. F38S. 21(10)(aa) inserted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 202(e)
  22. F39Words in s. 21(12)(a) inserted (E.W.) (1.4.2005) by Children Act 2004 (c. 31), ss. 40, 67, Sch. 3 para. 18; S.I. 2005/700, art. 2(2)
  23. F40Word in s. 21(12)(b) omitted (6.4.2011) by virtue of The Family Procedure (Modification of Enactments) Order 2011 (S.I. 2011/1045), art. 15(a)
  24. F41Words in s. 21(12)(c) omitted (2.2.2009) by virtue of The Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (S.I. 2008/1779), arts. 2(3), 6(8); S.R. 2008/510, art. 2
  25. F42Word in s. 21(12)(c) inserted (6.4.2011) by The Family Procedure (Modification of Enactments) Order 2011 (S.I. 2011/1045), art. 15(b)
  26. F43S. 21(12)(d) inserted (6.4.2011) by The Family Procedure (Modification of Enactments) Order 2011 (S.I. 2011/1045), art. 15(c)