A Local Authority v C & Ors [2021] EWCOP 25

A hearing to consider the scope and ambit of the law, in particular the Sexual Offences Act 2003, regarding the P accessing the services of a sex worker.

The 27 year old P suffers from Klinefelter syndrome (XXY syndrome). He lives in a house suitable for three occupants and their carers. An agency is commissioned to provide a package of support to meet the P's needs. In 2018 he told his Care Act advocate that though he wanted to have a girlfriend, he considered his prospects of finding one to be very limited. He said that he wanted to be able to have sex and wished to know whether he could have contact with a sex worker. The following issues were identified as needing to be considered by the court:

1. Whether a care plan to facilitate the P's contact with a sex worker could be implemented without the commission of an offence under the Sexual Offences Act 2003 (the SOA 2003);
2. If not, whether the Sexual Offences Act 2003 can be read compatibly with the European Convention of Human Rights, or whether the court should make a declaration of incompatibility;
3. If a care plan facilitating such contact is lawful, whether such a plan would be in the P's best interests.

The central question for the court to address was whether the carer is "intentionally causing" or "inciting" (s39 SOA) the P to engage in sexual activity. The court concluded that the SOA did not mean that care workers could not facilitate the P's contact with a sex worker. The words of the SOA are intending to criminalise those in a position of authority and trust whose actions are calculated to repress the autonomy of those with a mental disorder, in the sphere of sexual relations. Section 39 is structured to protect vulnerable adults from others, not from themselves. It is concerned to reduce the risk of sexual exploitation, not to repress autonomous sexual expression. The language of the section is not apt to criminalise carers motivated to facilitate such expression.

​Read the full text of the judgment on Bailii