High Court Greenlights Mothers’ Legal Challenge Over 2-Child Limit ‘Rape Clause’

The Royal Courts of Justice building, which houses the High Court of England and Wales, in London on Feb. 3, 2017. Daniel Leal/AFP via Getty Images

The High Court has given permission to two mothers who had children as a result of rape or coercion to legally challenge the rules around the two-child benefit limit policy.

Both women became pregnant with two or more children non-consensually while in abusive relationships that began in their teenage years.

The Child Poverty Action Group (CPAG) said that one of the women, known only as EFG, has four children, with the two eldest conceived through rape. Her two younger children were conceived in a later long-term and consensual relationship.

The second woman, referred to in the case as LMN, has six children, who were conceived with abusive partners.

Both mothers are bringing legal action against the Department for Work and Pensions (DWP) over the two-child limit policy, which they say breaches their human rights.

They claim that the policy rules breached their rights under Article 3 of the European Convention on Human Rights, which is the right not to be subjected to degrading and inhumane treatment.

2-Child Cap

The two-child limit was introduced in 2015 and applies to families with a third or subsequent child born after April 2017 claiming means-tested Child Tax Credit or Universal Credit, which is replacing Child Tax Credit.

An exception to the two-child limit applies when a child has been conceived non-consensually, but it only covers third or subsequent children in the household. Sometimes known as the rape clause, the exception can be applied when the woman was in an abusive relationship.

Commenting on the case of the two mothers, the head of strategic litigation at CPAG, Claire Hall, said: “Both of these women are subjected to the two-child limit despite the fact that they have conceived children non-consensually.

“And the reason for that is because the exemption only applies to third or subsequent children, and we’re saying that they should be able to get the exemption for the non-consensually conceived children, irrespective of at what point they are born.”

Speaking through the charity, the mother known as EFG said, “If I had been raped after my first two children were born, the exceptions would be applied, so basically [the DWP] are telling me that I was raped at the wrong time.”

Following a hearing last month, High Court Judge Michael Fordham concluded that “issues in this case warrant ventilation and authoritative resolution at a substantive hearing.”

“The claims are properly arguable with a realistic prospect of success,” Fordham said.

A DWP spokesperson said that the department cannot comment on ongoing legal cases. While no date has yet been set, CPAG expects a hearing to take place next year.

Costs

CPAG has suggested that the current benefits policy has cost the two women thousands of pounds in support.

The charity added that while the woman known as LMN eventually received an exception for her youngest child, she missed years’ worth of financial support, which will not be backdated.

CPAG Chief Executive Alison Garnham called the two-child limit “brutal” and called for the policy to be abolished.

“The families in this case are trying to rebuild their lives after many years of abuse. But their task is made all the harder by inhumane benefit rules that pile more pain on those they should be protecting,” said Garnham.

Labour said it is committed to ending child poverty, but cannot afford to abolish the two-child limit because of unexpected higher borrowing.

Chief Secretary to the Treasury Darren Jones said in August that cutting the two-child limit would cost the government between £2 billion and £3 billion a year.

In July, Labour suspended seven of its MPs—including former shadow chancellor John McDonnell and former Business Secretary Rebecca Long-Bailey—after they had rebelled against the government by backing an SNP-led amendment to abolish the cap.

Prime Minister Sir Keir Starmer had said that there was “no silver bullet” to ending child poverty, but acknowledged the “passion” of backbenchers who opposed the benefit cap.