McKee v McKee: PC 15 Mar 1951

(Canada) There was a choice open to the trial judge facing a contest for the custody of a child: ‘It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. It is, however, the negation of the proposition . . that the infant’s welfare is the paramount consideration, to say that where the learned trial judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow on order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, although in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case.’


Merriman, Simonds, Morton of Henryton, Radcliffe, Tucker LL


[1951] AC 352, [1951] UKPC 9, [1951] 1 All ER 942, [1951] 1 TLR 755




ApprovedRe B’s Settlement, B v B 1940
Morton J said: ‘I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of . .

Cited by:

CitedJ v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
CitedRe J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
CitedRe KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Lists of cited by and citing cases may be incomplete.

Children, Commonwealth

Updated: 01 July 2022; Ref: scu.228368