Section 1(3) Welfare Checklist: How Courts Decide Child Arrangement Orders

Introduction: why the welfare checklist matters

When parents dispute where a child should live or who they should spend time with the court must decide what serves the child’s best interests. In England and Wales judges and magistrates apply the welfare checklist in Section 1(3) of the Children Act 1989. That checklist frames every decision about child arrangement orders. Understanding each factor helps parents, practitioners and guardians present compelling, child‑centred cases.

The legal basis: Section 1(3) Children Act 1989

Section 1(1) of the Children Act 1989 makes the child’s welfare the court’s paramount consideration. Section 1(3) lists the specific factors the court must have regard to when carrying out that duty. The court does not treat the factors as a tick‑box exercise. It weighs them together, giving appropriate emphasis to the child’s particular needs and circumstances.

The Section 1(3) welfare checklist: an overview

Section 1(3) asks the court to consider:

– the ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding

– the child’s physical emotional and educational needs

– the likely effect on the child of any change in circumstances

– the child’s age sex background and any characteristics the court considers relevant

– any harm which the child has suffered or is at risk of suffering

– how capable each of the child’s parents and any other person in relation to whom the court considers the question to be relevant is of meeting the child’s needs

– the range of powers available to the court

Each factor receives careful scrutiny in hearings that concern residence contact relocation or specific issues.

Wishes and feelings: listening to the child

The court must ascertain the child’s views and take them into account in light of age and maturity. Judges weigh the child’s expressed wishes alongside other evidence rather than treat them as determinative. Young children often lack the maturity to make complex choices, while older teenagers may express clear preferences that carry significant weight. CAFCASS officers and guardians ad litem often interview children to obtain their views in a manner that minimises pressure and preserves confidentiality.

Physical emotional and educational needs: the heart of welfare

The court examines how each proposed arrangement meets the child’s day‑to‑day needs. That includes housing stability, nutrition, healthcare and emotional support. Education plays a central role: the court checks school continuity, special educational needs provision and the impact of moves on learning. Judges prefer arrangements that offer predictable routines and consistent caregiving.

Effect of change: transition and disruption

Courts recognise that changes such as relocation, a new primary carer, or alterations to schooling can affect a child’s wellbeing. The likely effect of any change receives careful analysis. For example a sudden move that severs friendships or disrupts schooling may count against relocation. Conversely a planned move that improves housing and family support might favour variation if it benefits the child’s overall needs.

Age sex background and relevant characteristics

The checklist requires consideration of the child’s age, sex, background and any other characteristics that matter in the case. Cultural religion linguistic or disability factors can shape arrangements significantly. For instance where a child has a disability the court looks closely at access to specific services and the skills of the carer in meeting medical needs.

Harm suffered or at risk of suffering: safeguarding as paramount

The court treats evidence of actual harm or risk of harm seriously. Allegations of abuse domestic violence neglect or parental substance misuse trigger rigorous examination. The court will consider whether protective measures such as supervised contact a prohibited steps order or a child protection plan should apply. Judges may order fact‑finding hearings to separate contested allegations from welfare decisions.

Parental capacity: assessing current and prospective care

Section 1(3) directs the court to assess each parent’s capacity to meet the child’s needs. The assessment looks at practical skills such as meeting routines and emotional availability such as providing reassurance in times of distress. Courts also consider attitudes to the child’s relationship with the other parent and willingness to facilitate contact. Evidence from social workers psychologists teachers and family members often informs this assessment.

Range of powers: tailoring orders to needs

The court must also consider the range of orders it can make. Child arrangement orders can specify where the child lives and with whom the child spends time and communicates. The court can make specific issue orders to resolve discrete disputes such as schooling or medical treatment, and prohibited steps orders to prevent actions like relocation or passport removal. Judges choose remedies that manage risk while promoting contact where safe.

The interplay between factors: no single factor rules

The welfare checklist works as an integrated test. A child’s wishes might carry high weight when the child is mature. But where significant risk exists a judge will prioritise safety over preference. Equally a parent’s capacity might be strong on routine care but weak in facilitating contact, which the court will address through tailored directions. The balancing exercise lies at the core of judicial decision making.

Evidence: building a persuasive case under Section 1(3)

Parties must present evidence that speaks directly to the checklist. Useful evidence includes:

– witness statements from parents carers teachers medical professionals and therapists

– school reports and health records

– chronology of events and communications

– expert reports where the court requests psychological or forensic assessment

– CAFCASS reports and S.7 reports

Keep submissions child‑focused and factual.

Avoid inflammatory language and speculative assertions. The court values clarity, brevity and relevance when evaluating competing narratives.

The role of CAFCASS and expert reports

CAFCASS provides the court with an independent assessment of the child’s welfare and recommendations tailored to the checklist. CAFCASS officers interview the child observe family dynamics and prepare reports that address safety contact arrangements and recommended directions. Where the facts or the child’s needs require specialist input the court may order expert evidence such as child psychology assessments. Judges regard such reports as important but weigh them alongside all other evidence.

Fact‑finding hearings: separating facts from welfare

When parties dispute allegations of harm the court may hold a fact‑finding hearing to determine contested events. The judge focuses on whether specific acts occurred before using those findings to inform welfare decisions. Parents and witnesses give evidence under oath and the judge evaluates credibility reliability and corroboration. The outcome of a fact‑finding hearing can change the weight the court gives to the harm factor within Section 1(3).

Practical judicial approaches and decision templates

Judges often adopt structured approaches to reasoning. Typical steps include:

– summarising the evidence relating to each welfare factor

– setting out findings of fact where necessary

– evaluating the impact of competing arrangements on the child’s welfare

– making proportionate orders that address needs and risks

Clear written judgments help parties understand the reasons for orders and the behaviour the court expects moving forward.

Addressing relocation and international moves under Section 1(3)

Relocation disputes test many checklist factors simultaneously. Courts ask whether the move serves the child’s welfare, how it affects education and relationships and what contact arrangements are feasible. The court also considers immigration and passport issues when moves involve different jurisdictions. Courts favour solutions that preserve relationships while protecting the child from unnecessary disruption.

Enforcement and variation: ensuring orders remain child‑centred

Once the court issues an order parties must follow it. If a situation changes materially either party can apply to vary the order. The court treats variation applications critically through the welfare lens, asking whether the proposed change better serves the child’s needs. For enforcement issues the court considers remedies that return focus to the child’s interests rather than punishing parents.

Practical tips for parents and practitioners

– Present evidence that maps directly to each Section 1(3) factor.

– Keep the child’s voice central: explain how proposals meet the child’s needs.

– Use clear timelines and contemporaneous records to demonstrate patterns of care.

– Cooperate with CAFCASS and attend appointments punctually.

– Ask for expert assessments when the child’s needs or allegations require specialist input.

– Consider mediation or dispute resolution that preserves relationships where safe to do so.

Common misconceptions about the welfare checklist

Misconception: the child’s wishes always control the decision. Reality: wishes matter but the court balances them with safety and maturity.

Misconception: equal time is always preferable. Reality: the court focuses on quality of care and practical feasibility not strict equality.

Misconception: a single bad incident decides the case. Reality: judges weigh patterns of behaviour and current risks alongside any isolated events.

Conclusion: applying Section 1(3) in practice

Section 1(3) of the Children Act 1989 provides a robust framework for welfare‑based decisions in child arrangement proceedings. The checklist guides judges to consider the child’s voice needs risks and the capabilities of carers within a flexible balancing exercise. Parties who prepare evidence that addresses each checklist factor and who prioritise the child’s wellbeing improve their chances of securing pragmatic durable arrangements. When in doubt seek specialist family law advice to ensure applications and responses meet procedural expectations and serve the child’s best interests.

At Alexander JLO we have many years of experience of dealing with all aspects of family law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000, email us at info@london-law.co.uk or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Peter Johnson on 30th October 2025 and is correct at the time of going to press. With over forty years of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here. To follow up on any of the above please contact Guy Wilton of our family department. Guy has wide experience of acting for the firm’s clients, their family and their businesses. Guy’s experience as a lawyer started in the Northern and Welsh Circuits, including the Liverpool Courts, where he represented numerous clients after being called to the Bar, before opting to join Alexander JLO in 2017 and qualifying as a solicitor in 2024. He is a highly experienced family lawyer with a particular interest in financial remedy proceedings and child contact disputes.

Guy’s profile on the independent Review Solicitor website can be viewed here.