Re R

It is the counterweight to McKee v. McKee. Welfare is paramount, but a rule that always re-examined the question afresh would reward the parent who moved the child. This case says that abduction is not rewarded.

A mother removed a child to England in violation of a New York order.

The English court sent the child back with the father. 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 the orders of foreign courts in respect of custody and guardianship of children unless it concludes that giving effect to the foreign order would not be in the interests of the child.

Step one — the incentive problem. If a foreign order counted for little, the quickest route to a new decision would be to take the child to a new country. The doctrine would then produce the very instability it exists to prevent.

Step two — respect for the foreign order as the default. Recognition is the starting point, and the child's interests are the exception that displaces it, not the other way round.

Step three — welfare remains the master principle. The formulation preserves it: the foreign order is given effect unless that would not be in the child's interests.

It opens: What weight is given to a foreign custody order? — and it is the case that balances McKee.

State the pair as a single proposition. A foreign order is an important factor but never decisive (McKee); and it is nevertheless to be recognised unless recognition would harm the child (Re R). The difference in emphasis is the whole of the Indian discussion that follows.

Give the Indian development. Marggarate Pulparampil holds that courts need not blindly follow a foreign custody order, but that all courts respect orders passed with jurisdiction and after a fair contest, subject to a material and sufficient change of circumstances. Surya Vadanan then adds the first-strike principle — due weight to a substantive order prior in point of time from a court whose jurisdiction is not in doubt — and the summary or elaborate inquiry test, with the caution that an elaborate inquiry should not be ordered as a matter of course.

And end with the humane qualification, which examiners like: merely because a parent has violated an order of a foreign court does not mean that that parent should be penalised for it. Conduct may be weighed in the final order; it may not become a punishment visited on the child.

It does not decide that a removed child must always be returned; the interests of the child remain the controlling exception.