McKee v. McKee

It states the merits rule for children in its strongest form: welfare is paramount, and a foreign custody order, however regular, is never decisive.

The father took the boy from California to Ontario in breach of a custody order and of a written agreement.

The Ontario court's order giving him custody was restored. The Californian order was an important factor to be considered, but could never be taken as decisive.

Step one — the governing principle. In every case, whether or not there is a foreign court order, the paramount consideration is the welfare of the child, to which everything else must yield; the statutory formula is that the court shall regard the welfare of the minor as the first and paramount consideration.

Step two — what that does to the foreign order. A foreign order is evidence of what another court, on the material before it, thought best for this child. It is therefore important, and it is not conclusive, because the forum must satisfy itself.

Step three — the tension this creates. Taken alone, the principle would reward the parent who moved the child, since the forum will always look afresh. That is why it cannot be taken alone.

It opens: Is a foreign custody order binding? — answer no, and cite this case first.

Immediately supply the counterweight, because an answer with only this case is wrong. In Re R a child removed to England in violation of a New York order was sent back: it is the duty of the courts in every country not to allow the kidnapper to reap the benefits of his misdeeds, and every court should give recognition to foreign custody and guardianship orders unless giving effect to the foreign order would not be in the interests of the child.

Then give the Indian synthesis. Marggarate Pulparampil: courts need not blindly follow a foreign custody order, but all courts respect orders passed with jurisdiction and after a fair contest, subject to any material and sufficient change of circumstances justifying alteration. And Surya Vadanan, which accepts that comity does not require blind obedience, that welfare is first and paramount whatever the foreign court ordered, and that the modern theory prefers the jurisdiction of the State having the most intimate contact with the issues — adding the first-strike principle and the summary or elaborate inquiry test.

Answer a custody problem in four steps. Where is the child ordinarily resident? Which court has the most intimate contact? Is there a prior substantive foreign order from a court whose jurisdiction is not in doubt? Should the inquiry be summary or elaborate? Through all four, welfare remains paramount, and comity determines the forum that will decide welfare, not the result.

It does not decide that the removing parent is to be rewarded; the later cases supply the corrective.