TWO women have lost a legal challenge against the Department for Work and Pensions (DWP) over the rules around the "rape clause" of the two-child benefit cap.
The mothers had both conceived their eldest children while in abusive relationships.
The non-consensual conception exception, also known as the rape clause, allows universal credit (UC) recipients to claim benefits for more than two children – but only if the third or subsequent children have been conceived non-consensually.
This leaves some women unable to use this exception if, for example, their first two children are conceived in rape, but they have further children in consensual relationships.
The two mothers, identified only as LMN and EFG, brought legal action against the DWP over the rules around the policy, saying they breached their human rights and were “irrational”.
In a ruling published on Friday, Justice Collins Rice dismissed their claim, saying the issue was “a policy question” and not for a court to decide.
A hearing at Leeds Administrative Court in June heard both women were young and vulnerable when they began relationships in their teens and first became pregnant.
Karon Monaghan KC, representing the women, said both were subject to regular violence and coercion, with one describing how she was choked to unconsciousness and raped multiple times.
EFG conceived her two eldest children through rape and was told she could not claim the benefit for her third and fourth children, both of whom were conceived consensually in a later long-term relationship.
She was initially paid the child element of UC for the third child, but this was later rescinded, after the fourth child was born.
Mother-of-six LMN was subjected to domestic abuse and violent and coercive behaviour by former partners with whom she had children.
Monaghan said she had older children in care and two living with her, but then one of the older children returned to her home.
She was refused an exception to the two-child limit under these “ordering provisions”.
The Child Poverty Action Group (CPAG), which provided the women’s legal representation, said that while LMN was eventually granted an exception for her youngest child, “she went for years without this support, amounting to thousands of pounds which will not be backdated”.
Justice Collins Rice said the two women were “survivors of appalling relationship abuse” which involved “sustained physical, sexual and psychological violence”.
She said their claim was that: “The UC ‘two-child benefit cap’ should not apply to them, unless and until they have been afforded the opportunity everyone else takes for granted – if they can, to bring two children into the world as a result of freely chosen intimacy within a freely chosen relationship.
“This is an argument which takes its place in the intensely controversial political debate within which both proponents and opponents of the ‘two-child benefit cap’ have advanced their views over the years, in which CPAG has played an active and tireless role, and which continues to the present day.
“To the extent that it is conducted in the political arena and in the forum of public opinion, that is where the argument will ultimately be resolved.”
The judge concluded: “There is no legal analysis, or standards, by which a court can decide whether or not UC recipients who are mothers of two non-consensually conceived children should receive additional financial support from the state by excepting them from the ‘two-child benefit cap’ and paying the child element of UC for a further one or two consensually conceived children.
“It is a policy question dealing in social, economic, moral, and ethical subject matter. It is also a question with potential resonances in family law more generally. It is a political law reform question.”
Responding to the judgment, the woman known as EFG said the decision was “disappointing” but that she would “keep going and fight this to the end”.
The woman said: “All of my choices were taken away from me for years by my abuser before I fled. I’ve fought hard to get on with my life for me and my kids.
“But the two-child limit makes it more difficult. The Government says that the exceptions are to protect people who – like me – didn’t have a choice about the number of kids in their family, but the rape clause doesn’t do that.
"The rules need to change to protect families like mine.”
The woman known as LMN added: “I want to keep going with the case as I feel like it’s against my human rights.
“When my oldest came back to live with me from care and before I got the exception for my youngest, we had to survive on less money. That stopped me doing things with the children – I never planned on having the children but that’s not their fault.”
Claire Hall, solicitor at CPAG who represented the women, said: “Our clients are obviously disappointed with today’s decision but are determined to keep going with their cases.
“We will look at appealing today’s decision but in the meantime all eyes are on the government which has the chance to do the right thing and abolish the inhumane two-child limit in the autumn child poverty strategy.”
A DWP spokesperson said: “Violence against women and girls is a national emergency – and our mission is to halve it within a decade.
“Victims of rape and coercion should be treated with dignity and respect.
“This court decision is about whether a policy – designed by the previous government – was being implemented lawfully.
“This policy will be considered along with all other levers including Social Security reform by the Child Poverty Taskforce, the group will publish the Child Poverty Strategy in the autumn.”
