ABSTRACT
The approach of English courts at common law was to determine the best interests of the child. This precluded the automatic acceptance of a foreign custody order. The status of a foreign custody order and any subsequent abduction were matters simply to weigh in the balance in determining the best interests of the child. This was in contrast to the approach of other common law jurisdictions, where provision had been made for the automatic recognition of a foreign custody order. The authorities in the post War period derived from the leading case of McKee v McKee,141 where the facts were straightforward: the Supreme Court of California had awarded custody to the mother. Without consent, the father took the child to the Province of Ontario. The mother began habeas corpus proceedings to have the child returned. The trial judge, with whom the Court of Appeal agreed, after investigating the merits, came to the conclusion that the child would be better with his father. This judgment was set aside by the Supreme Court of Canada. The Privy Council reversed the judgment of the Supreme Court of Canada and restored the ruling of the trial judge. In giving the judgment of the Privy Council, Lord Simmonds had no doubt that the central question was the welfare of the child and that the discretion of the trial judge should not be lightly set aside and he set out the position clearly:
It was, therefore, the duty of the trial judge to act in the interests of the welfare of the child. If the foreign order had recently been given and there had been a flagrant breach, then immediate return might be ordered but, in other cases, the court might hold a full hearing with cross examination upon affidavits before reaching a determination as to what was in the best interests of the child. The case law in the 1960s and 1970s indicated that the trial judge was to act in the interests of the child and that the element of kidnapping was no more than one consideration to be weighed in the balance.143 However, there
was already concern at the position an English court might find itself in when the orders of a foreign court were flagrantly breached. The dilemma was well expressed by Cross J (as he then was) in Re E (an infant), where the learned judge referred to the general problem:144
Determining what was in the best interest interests of the child might involve a summary hearing and a swift return or a more lengthy hearing. The courts were anxious to avoid entering into ‘the last dregs of the dispute between the parties’.145 What was required was ‘a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child’.146
