FD24P00857 - [2025] EWHC 835 (Fam)

Fecha: 08-Abr-2025

Consent and Repudiatory Retention

Consent and Repudiatory Retention

71.

However, in the alternative, should I be wrong in my conclusions above, I next consider whether if the move was not based on deception whether the move was temporary until November, as the father suggests, or permanent, as the mother suggests.

72.

On this issue, I accept once more Miss Renton’s case. I find – leaving aside the deception - the move was based on a temporary relocation until November 2024 and not a permanent one. I prefer the father’s written and oral evidence over the mother’s as it was more credible and was supported by contemporaneous communications. In particular:

Both parties accept no efforts were made to rent or sell the former matrimonial home in Italy - this remained largely unoccupied, as the agreement was for the parties to return in Italy;

The father kept his employment in Italy and when he was made redundant in July 2024 looked for employment in Italy not London. Why would he do so from July if he planned to move to London permanently with his family?

The father’s communications with the following all support a November 2024 return to Italy:

Father texted mother in May 2024 referencing London being until November;

ii.

Father messaged a pension fund consultant in July 2024 informing him the family were in London until November;

iii.

Father messages a counsellor in July 2024 again referencing the family’s relocation until November;

iv.

The father emailed Italian social services on 12 May 2024 asking them not to close their investigation because they would come back to Italy;

Mr E’s evidence demonstrates his understanding the family would return to Italy in November;

The mother hid the children’s passports from the father which makes little sense if the move to London was agreed to be permanent.

The father’s November 2024 messages to the mother to plan the return make clear his understanding was that they were returning home to Italy.

As set out above, the mother’s approach to the April 2024 relocation was predicated on her deception.

73.

On the basis this was a temporary move, the mother breached the father’s rights of custody by planning a permanent relocation after the temporary one in London which was agreed had begun. This is the repudiatory breach. On the evidence this is established on 1 May 2024 when the mother agreed a Prep School place for S without the father’s knowledge or consent. I also find on the totality of the evidence it is more likely than not that the mother did consult solicitors to seek divorce advice on 8 May 2024, as she confirmed to the London social worker. I do not accept this was advice about domestic abuse and that has never been explained (leaving aside any issue of privilege). Nor do I accept the social worker made the errors the mother suggests because she was rushing on her last day of employment. Alternatively, the mother had certainly planned to repudiate the consent to a temporary relocation when she explained her plan to London social services in August 2024 or by the very least in November 2024 when she filed for divorce.

74.

I therefore find applying Re C that if the removal to London in April 2024 was not wrongful because I am wrong about the mother’s deception, then there was a repudiatory breach as early as 1 May 2024 or alternatively on 8 May 2024, August 2024 or November 2024.