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Explanatory Memorandum to Sexual Offences (Northern Ireland) Order 2008

Article 34: Family relationships

7.79.Article 34 lists the relationships relevant for the purposes of Articles 32 and 33. Article 40 of the Adoption (Northern Ireland) Order provides that an adoptive child is the child of the adoptive parents and not the biological parents. Adoptive relationships are therefore covered by paragraphs (1)(a). The categories at paragraphs (2) to (4) also apply (by virtue of subsection (1)(b)) to the adoptive child's biological family relationships. These relationships fall into three categories.

7.80.The first category of relationships is listed in paragraph (2). Definitions of the relationships mentioned at paragraph (2) are at paragraph (5)(a) to (c). Persons whose relationships fall within this category will always be each other's family members for the purposes of Articles 32 and 33. Even where there is no blood relationship and the relationship can therefore cease - as in the case of foster parents - this offence may be committed for as long as the victim is under 18. So for example even where A is no longer a child's foster parent, A will commit an offence by having sex with that child while the child is under 18.

7.81.The second category of relationships is listed in paragraph (3). The relationship between A and a child will only fall within this category for the purposes of Articles 32 and 33 if A lives, or has lived, in the same household as the child or is, or has been, regularly involved in caring for, training or supervising or being in sole charge of the child. Paragraph (3)(a) relates to step-parents, (3)(b) relates to cousins, (3)(c) relates to step-siblings and (3)(d) relates to foster-siblings. The definition of foster parent is at paragraph (5)(c) and the definition of step-parent, stepbrother and stepsister is at paragraph (5)(e). An example within this category would be a person (A) who lives or has lived in the same house as his first cousin who is under 18. If the cousins had never lived in the same household, A would not commit this offence by having a sexual relationship with the cousin. As with the first category, if the relationship ceases (for example A ceases to be the partner of the child's mother), the offence will still be committed if A has sex with the child while the child is under 18.

7.82.An example of the third category of relationships (at paragraph (4)) would be where a child is living in the same household as an au pair who looks after him. This category of relationship differs from the other two categories in that an offence will not be committed if A has a sexual relationship with the child after the relationship has ceased, even where the child is under 18. So, in this example, if the au pair were to leave the household and/or cease to have responsibility for the child, then the relationship would no longer be relevant for the purposes of Articles 32 and 33.

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