The “welfare check-list” (subsection 1(3) of the Children Act 1989)
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
According to subsection 1(4), courts must use the welfare check-list in any application for —
- a Specific Issue Order (which is an order defined under section 8 of the Act — known as a “section 8 order”)
- a free-standing application under subsection 33(7) for leave to change a child’s surname (when there’s a Care Order in force), which is under Part IV
However, the check-list doesn’t — according to the statute — have to be used in applications to change a child’s surname when a Child Arrangements Order / Residence Order / Special Guardianship Order / Care Order (or interim Care Order) is in force (which would be under subsections 13(1), 14C(3), or 33(7) of the Act).
Nonetheless, Lord Justices Hirst and Thorpe, in Dawson v Wearmouth  EWCA Civ 2272 (in the Court of Appeal), noted that — when there’s an application under section 13 — the court will normally take the subsection 1(3) check-list into account anyway. (And logically, this would also extend to subsections 14C(3) and 33(7) which are almost identical in form and intent to subsection 13(1).) The Lord Justices said, in their joint judgment, that —
The judge entertaining the application under section 13, rather than under section 8, will invariably have regard to the considerations identified in section 1(3) in his search for welfare as the paramount consideration even if under no specific statutory duty so to do.
And in Re W, Re A, Re B (Change of Name)  EWCA Civ 2030, Lady Justice Butler-Sloss implied that courts should take the subsection 1(3) check-list into account on any application for a child’s change of name — that is — whether under section 8 or not.
In Payne v Payne  EWCA Civ 166 — although it was an application for leave to remove a child from the U.K. (and nothing to do with a change of name) — Lord Justice Thorpe went further, commenting that —
Although technically an application brought under section 13(1) is not subject to the welfare check list it has been held that the trial judge should nevertheless take the precaution of regarding the check list factors when carrying out his welfare appraisal.