1 See e.g. Spiro, E., “Foreign Custody Orders” (1950) 33 J. Comp. Leg. 73, 76Google Scholar; “The jurisdiction of a Court sitting to guard the interests of a ward may to some extent be of a parental or administrative nature, the disposal of controverted questions being only an incident.” The author concludes, however, that a custody order constitutes a judgment “in the Conflict of Laws sense”. See also further remarks on this topic by the same author in his book Conflict of Laws (Capetown, 1973) 215–230. nd see Ld. Simon, “Judicial Processes in England”—Part II (Bramley Memorial Lecture) (1973) 70 Law Society's Gazette 2060, 2061; “The role of the judge is a somewhat equivocal one. He knows that almost any arrangement which is come to with the agreement of the parents will be better than one imposed by him; and he will tend … to act as a conciliator—not a traditionally judicial role.”

2 In exercising this jurisdiction the High Court has based itself on common law principles: See Cheshin J. in Rimon v. Rimon (1950) 4 P.D. 781, 787: “The right to apply to the court to grant an order in the nature of habeas corpus for the release of a minor from the control of strangers and his return to the person entitled to control over him is derived from common law principles of long standing”. And see judgment of Smoira P. in Amado v. Amado (1950) 4 P.D. 5, 13, where it is pointed out that habeas corpus is always the appropriate remedy where it is sought to enforce the ruling of a court, domestic or foreign, as to custody, but not where the object of the litigation is to make a primary determination as to the rights of the parents. See also A. v. B. (1963) 17 P.D. 2213, 2219.

3 The Further Hearing related only to the question of the jurisdiction of the High Court of Justice to enforce the mother's right of visitation, in respect of which the original judgment was confirmed.

4 A. v. B. (1972) (I) 26 P.D. 85, 90.

5 See the remarks of Agranat P. “…this solution is not the ideal one from the point of view of the child, but this unfortunately is true of almost any solution which the court can provide to the problem of the custody of a child which arises owing to the separation of his parents. The only way … is to choose the least unsatisfactory solution” (pp. 650–1).

6 Agranat P. in his Judgment, refers to the English case of Re H. (Infants) [1965] 3 All E.R. 906; [1966] 1 All E.R. 886 as being directly in point (p. 647).

7 Amado v. Amado (1950) 4 P.D. 5, 18, and see Spiro, loc. cit. supra n. 1. For another view, holding that custody is not a status, see D. F. Sainsbury, “Custody and Maintenance Law across State Lines” (1940) 10 L. & Contemp. Prob. 819.

8 See Dicey, and Morris, , The Conflict of Laws (9th ed., 1973).Google Scholar Similar rules, albeit relating primarily to international jurisdiction, may be found in Restatement of the Law, Second: Conflict of Laws § 79 and see translation of Draft Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants (1960) 9 Am. J. Comp. L. 708 whicbh provides for recognition, inter alia, of measures taken by the judicial authorities of the state of habitual residence of an infant for the protection of his person or property. This Convention has so far been ratified by six European states, but so far not by the United States, the United Kingdom or Israel.

9 See, for Israel, Amado v. Amado (1950) 4 P.D. 5, 20; Steiner v. A.G. (1955) 9 P.D. 241; Paltiel v. Paltiel (1959) 13 P.D. 599, 604.

10 The normal rules of choice of law are also similarly rejected in favour of the child's welfare. See Steiner and Paltiel cases, cited in previous note.

11 Case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (1958) I.C.J. Reports of Judgments, etc. 55, 90. The case was actually concerned with the interpretation of the Convention of 1902 dealing with guardianship, but in effect the court ignored the distinction between guardianship and custody. See Lipstein, K., “The Hague Conventions on Private International Law, Public Law and Public Policy” (1959) 8 Int. and Comp. L.Q. 506, 508.CrossRefGoogle Scholar

12 Women's Equal Rights Law, 1951, sec. 3 (b): “The provisions of subsection (a) [which provides that both parents are the natural guardians of their children] shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interest of the children as the sole consideration”.

13 Guardianship of Infants Act, 1925, sec. 1: “Where in any proceedings‥ the custody or upbringing of an infant … is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration”.

14 See cases supra n. 9; see also Rot v. Roi (1962) 16 P.D. 1384.

15 Streit v. Chief Rabbi (1964) (I) 18 P.D. 598, 613, per Cohn J. “…Israel is a State of immigration and absorption, and constitutional provisions such as the Law of Return and the Citizenship Law give statutory recognition to this attribute of the State”.

16 Amado v. Amado (1950) 4 P.D. 4, 21, per Smoira P.: “As far as public policy is concerned, this Court and every judge in Israel will certainly welcome every Jewish child who comes to Israel and is educated here. But this is not the way to bring Jewish children here. We must at all costs avoid making this country into a refuge for people who in defiance of the law, abduct children and bring them here in the course of matrimonial disputes”. See also Steinberg v. Steinberg (1972) (II) 26 P.D. 436, 438; and (F.H) (1973) (II) 27 P.D. 197, judgments of Landau J. at p. 205, and Etzioni J. at p. 213.

17 It should however be pointed out that, without independent legal representation for the child, the significance of the “child's welfare” is often illusory. In England, the recognition that the child's interests may not necessarily coincide with those of either of the parents has led to a proposal for legislation, to be introduced shortly within the framework of a comprehensive Children's Bill, providing for separate legal representation for a child involved in a custody dispute: see note in British Medical Journal, September 14, 1974, p. 641. Cf. the words of Silberg J. in Steiner v. A.G. (1955) 9 P.D. 241, 251: “…the child is not an ‘Object’ of custody for the benefit of one or other of his parents, but he himself is a ‘subject’, a party to the litigation in his own right on this vital issue…”

18 See, however, Womens' Equal Rights Law, 1951, sec. 3 (b), supra n. 12.

19 This is nevertheless a secondary factor:: Leflar, R., American Conflicts Law (1968) 569.Google Scholar

20 Ehrenzweig, Albert A., A Treatise on the Conflict of Laws (1962) 293.Google Scholar

21 See McKee v. McKee [1951] A.C. 352, 365; A. v. B. (1972) (I) 26 P.D. 85, 89.