Best Interests Of The Child: What Does The Court Really Consider?

When parents separate, one of the most common questions asked is: “At what age can a child decide where they want to live?” or “Will the judge listen to what my child wants?”

Whilst a child’s wishes and feelings are important, they are only one part of the picture. The Family Court’s role is not to determine what a parent wants, or even necessarily what a child says they want, but rather what arrangement is in the child’s best interests.

Understanding how the court assesses a child’s welfare can help parents approach disputes with realistic expectations and a greater focus on finding solutions that work for their children.

The Welfare Principle

When the court is asked to make decisions about a child under the Children Act 1989, the child’s welfare is the court’s paramount consideration. In other words, the child’s needs and welfare come before the wishes or interests of either parent.

The court does not start from the position of deciding which parent is “better”. Instead, it considers what arrangements will best promote the child’s welfare, emotional wellbeing and long-term development.

To assist with this assessment, judges must consider a number of factors known as the “welfare checklist”.

What Is the Welfare Checklist?

The welfare checklist is set out in section 1(3) of the Children Act 1989 and requires the court to consider:

• The child’s wishes and feelings, considered in light of their 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 the child has suffered or is at risk of suffering.
• How capable each parent is of meeting the child’s needs.
• The range of powers available to the court.

No single factor automatically outweighs the others. The court will consider all of the circumstances of the individual child and family before reaching a decision.

Wishes and Feelings: Important but Not Determinative

Many parents are surprised to learn that a child’s wishes do not automatically determine the outcome of a case.

The court will carefully consider a child’s views, but it will also examine how those views have been formed and whether they genuinely reflect the child’s wishes and welfare needs.

For example, a child may express a wish to live with one parent because that parent has fewer boundaries, offers greater freedom, or because the child feels caught in the middle of parental conflict. Equally, there may be concerns that a child has been influenced, whether intentionally or unintentionally, by one parent.

The court therefore focuses on the child’s ascertainable wishes and feelings rather than simply repeating what the child has said.

As one judge observed in a well-known case, “actions speak louder than words”. The court will often look at the child’s behaviour, relationships and overall circumstances alongside anything they have expressed directly.

Does Age Matter?

Yes, but there is no magic age at which a child gets to decide.

The views of a very young child are likely to carry less weight than those of an older teenager who demonstrates maturity and understanding. However, even older children’s wishes are not decisive.

The court recognises that every child is different. Two children of the same age may have very different levels of maturity, insight and understanding of their circumstances.

In practice, courts are often reluctant to make orders that are entirely contrary to the wishes of an older teenager. However, where the court considers those wishes are not consistent with the child’s welfare, it may make decisions that differ from the child’s stated preference.

How Does the Court Find Out What a Child Thinks?

Children are not usually required to give evidence in court or choose between their parents.

Instead, their views are commonly obtained through Cafcass (the Children and Family Court Advisory and Support Service) or, in some cases, a local authority social worker or independent social worker.

A Cafcass officer may meet with the child and speak to the parents before preparing a report for the court. The purpose is not simply to relay what a child has said, but to help the court understand the child’s experiences, relationships and welfare needs.

In more complex cases, a child may be separately represented through a Children’s Guardian, who can provide an independent view about what arrangements are in the child’s best interests.

The Impact of Harm and Risk

Whilst wishes and feelings are important, concerns about harm will frequently carry significant weight in the court’s analysis.

The court will carefully examine any allegations of domestic abuse, coercive and controlling behaviour, substance misuse, neglect or other safeguarding concerns.

Even where a child wishes to spend more time with a parent, the court must be satisfied that any arrangement is safe and promotes that child’s welfare.

The focus is always on balancing the benefits of maintaining meaningful relationships with both parents against any identified risks.

Stability and Meeting a Child’s Needs

The court also places considerable emphasis on stability.

Judges will consider how proposed arrangements are likely to affect a child’s routine, education, friendships, emotional wellbeing and sense of security.

This does not mean the court will always maintain the status quo. However, where significant changes are proposed, the court will usually want to understand how those changes will impact the child and whether they are genuinely beneficial.

The key question is often not what either parent wants, but which arrangement is most likely to meet the child’s needs both now and in the future.

Focusing on the Child Rather Than the Dispute

Parents involved in court proceedings can understandably become focused on proving their position or responding to allegations. However, the court’s focus remains firmly on the child.

The most persuasive evidence is often not who is “right” or “wrong”, but what demonstrates an ability to prioritise the child’s welfare, support their relationship with the other parent where appropriate, and meet their emotional and practical needs.

Final Thoughts

Every family is different and there is no one-size-fits-all approach to determining what is in a child’s best interests. Whilst a child’s wishes and feelings form an important part of the court’s assessment, they are only one factor within a broader welfare evaluation.

Ultimately, the court’s task is to look at the child as an individual and determine what arrangements will best promote their welfare, stability and long-term wellbeing.