High Court examines new statutory child safeguarding regime and clarifies GPs' entitlement to payment under contract for safeguarding services

The High Court has recently handed down judgment in R (British Medical Association) v Northamptonshire County Council & Others [2020] EWHC 1664 (Admin), the first case to consider the new statutory regime for the safeguarding of children in local authority areas contained in ss.16E-16L Children Act 2004 ("the CA") , as introduced by the Children and Social Work Act 2017. The case also considers various statutory provisions which have previously been relied on by statutory bodies to justify the refusal by some to remunerate GPs for their role in the safeguarding process, mainly through the provision of GP safeguarding reports and attendance by GPs at safeguarding meetings.

The Claimant, the British Medical Association, challenged the child safeguarding plan ("the Plan") published by the "safeguarding partners" (the local authority, the police and the relevant CCGs) for the area of Northamptonshire pursuant to s.16G of the CA. The Claimant contended that the Plan was unlawful due to its failure to recognise the role of GPs in the safeguarding process and to identify a system for remuneration of the same. The Claimant contended this failure was contrary to the relevant statutory guidance (which required the Plan to explain how the safeguarding arrangements would be funded), amounted to a failure to consider a relevant consideration, and also that the decision-making process failed to discharge s.11 of the CA in circumstances where the implications of failing to plan for the input of GPs in the safeguarding process had not been considered.

Swift J rejected these arguments, primarily on the basis of a narrow construction of s.16E CA. His reasoning was as follows. That which had to be published in the Plan (pursuant to s.16G CA) were the arrangements of the safeguarding partners "to work together in exercising their [safeguarding] functions" (s.16E). Swift J understood this statutory language to mean that only the arrangements to "work together" had to be published, but not the substantive safeguarding arrangements. In other words, the Plan had to set out how the partners would co-operate (via joint meetings etc) but it did not need to identify the outcome of this joint working. Consequently, there was no omission in the Plan because although it did not mention GPs or how they would be remunerated for their safeguarding work, the Plan did set out the way in which the safeguarding partners would work together.

The vast majority of the Defendants' response to the claim had focussed on various statutory provisions said to require GPs to provide safeguarding services for free such that there was no obligation for them to be paid for this work by the safeguarding partners. Although, for the reasons given above, it was not necessary to consider these arguments to determine the claim, Swift J nonetheless addressed them obiter given that he had heard full argument on the issues. In short, he rejected all of the Defendants' arguments in this regard. Specifically, he considered that the following provisions do not impose any obligation on GPs to provide safeguarding services without remuneration: s.16H CA; s.47(9) Children Act 1989; the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and related guidance. The court therefore clarified that, as safeguarding services are not covered in GPs' NHS Contract, whether GPs are entitled to payment is a matter of private law, to be determined in accordance with standard contractual principles.

As such, it is hoped that the clarity provided by the judgment will assist GPs seeking payment for safeguarding services. In particular, it is now clear that there is no statutory defence to a contractual claim for non-payment of safeguarding services; GPs are not required to provide these services for free.

The judgment can be accessed on Bailli here.

Jenni Richards QC and Katherine Barnes acted for the Claimant, instructed by Nicola Mead-Batten at Capital Law.