The need for expert evidence in Article 3 claims continues to divide opinion although it is generally accepted the need should be decided on a case-by-case basis.  Some advocates consider that in most cases, such an instruction will be required and that it will assist defendants at trial if reasonableness under Article 3 is interpreted as akin to the Bolam Standard (the standard test used to establish whether the duty of care has been breached when judged by their professional’s peers).

In AB v Worcestershire and Coventry [2023] EWCA Civ 529 Lewis LJ said : -  “There was no need for expert evidence… on this aspect of an alleged violation of Article 3 of the Convention, the question was whether “judged reasonably”, either Birmingham or Worcestershire had failed to take appropriate steps to avoid a real and immediate risk of Article 3 ill-treatment.  That was a question for the court, not for expert evidence.”  This comment was an obiter one and the issue as to whether expert evidence would be required in Article 3 claims was not argued before the court.  Indeed, in AB – breach of duty was not in issue.

Most Article 3 claims are brought under the operational limb.  As per AB that can be broken down as follows: - 

  1. A real and immediate risk
  2. Of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3
  3. That the public authority knew or ought to have known of the risk and
  4. The authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk. 

It is unlikely expert evidence would be required when considering issues (1) and (2).  As regards (3), what an authority “ought to have known” imports a test of reasonableness and can become complex. An expert may be able to assist as to whether a referral should have led to further investigation or from a defendant’s perspective, be able to say that a reasonable body of social workers would not have undertaken a s.47 investigation. 

As regards (4), the conduct of social workers is to be “judged reasonably” and it is perhaps difficult to see how a court would approach this assessment without expert evidence.  The Bolam test was adopted as a sign of judicial deference to professionals who could consider whether conduct fell outside the practice of any reasonable and responsible body of professionals in that field at that time.  It may assist defendants’ for example, to have evidence to show that notwithstanding the real and immediate risk of Article 3 ill-treatment, there was a responsible body of social workers that would tolerate / balance that risk and not recommend removal.

Whilst there are some arguments to support the instruction of liability experts therefore, the instruction of those experts significantly increases the cost of litigation and following the comments in AB, it is not yet known how much reliance a court would be willing to place upon such evidence in any event.