A child’s welfare (the “section 1 criteria”) (England & Wales)
Section 1 of the Children Act 1989 is to do with a child’s welfare. It lays down fundamental principles which courts have to follow in any matters relating to children. These are often known as the “section 1 criteria”.
A child’s welfare
There isn’t a formal definition of “welfare” in the Children Act 1989, although it was already an important concept before the Children Act was passed. (The courts also sometimes talk about the child’s “best interests” or “well-being”, but these all mean the same thing as welfare.)
In Re McGrath (Infants)  1 Ch 143, Lord Justice Lindley held that −
The welfare of the child is not to be measured by money only, nor by physical comfort only. The word welfare must be considered in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.
[In evaluating a child's best interests] everything that conduces to a child’s welfare and happiness, or relates to the child’s development and present and future life as a human being, including the child’s familial, educational and social environment, and the child’s social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account.
So although material welfare of the child — including their home, standard of living, and adequate care — is important, it’s secondary to —
- the child’s safety and protection
- security and stability in the child’s life
- care, love, and guidance
- affectionate relationships (both within and without the family)
- the child’s education
Subsection 1(3) of the Children Act also sets out a check-list of factors that a court should take into account in certain kinds of application, although this isn’t a formal definition of “welfare”, and doesn’t apply to all court proceedings.
The “section 1 criteria”
The “section 1 criteria” is an informal term for the principles in section 1 of the Children Act, which are all to do with the child’s welfare.
The child’s welfare is paramount (subsection 1(1))
Main article: The welfare principle
Courts must have the child’s welfare as their “paramount consideration” when making any decision about a child’s name, or change of name, according to subsection 1(1).
Subsection 1(1) is the most important part of section 1, because it forms the basis of all the other section 1 criteria.
The principle is sometimes called the “welfare principle” or the “paramountcy principle”, and it applies generally to any proceedings where a court has to resolve a question to do with a child’s upbringing (i.e. not just proceedings under the Children Act).
Reduce delay as much as possible (subsection 1(2))
In balance with their other considerations, the court must reduce delay as much as possible, according to subsection 1(2) —
In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
Every parent should be involved in the child’s life (subsection 1(2A))
Main article: Parent involvement
On any application for a Specific Issue Order (or any section 8 order), the court must presume that each parent being involved in the child’s life will be good for the child’s welfare, according to subsection 1(2A).
The “welfare check-list” (subsection 1(3))
Main article: The welfare check-list
On any application for a Specific Issue Order (or any section 8 order), the court must have particular regard to the check-list in subsection 1(3) — often called the “subsection 1(3) check-list / criteria”, or the “welfare check-list”:
- (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
- (b) his physical, emotional and educational needs
- (c) the likely effect on him of any change in his circumstances
- (d) his age, sex, background and any characteristics of his which the court considers relevant
- (e) any harm which he has suffered or is at risk of suffering
- (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
- (g) the range of powers available to the court under this Act in the proceedings in question
The ‘no order’ principle (subsection 1(5))
The court also must consider whether it would be better not to make an order, according to subsection 1(5) of the Act, which provides that —
Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
This is a crucial part of the welfare test as laid out by Dawson v Wearmouth, in the House of Lords.