Mothers get go-ahead for legal challenge against two-child limit ‘rape clause’ rules

Note: anonymity orders and reporting restrictions are in place in relation to the claimants and their children in this case 

• “DWP is telling me I was raped at the wrong time”

Two mothers who had children as a result of rape or coercion by former partners have been given permission by the High Court to proceed with a legal challenge against the rules on exceptions to the two-child limit in universal credit (UC).

Both women conceived two or more children non-consensually while in abusive relationships that started when they were teenagers. 

Although there is an exception to the two-child limit when a child has been conceived non-consensually, it only applies to third or subsequent children in the household. So, if a woman has two consensually conceived children and then has a third child that was conceived non-consensually, she will receive the child elements of UC for each child, as an exception to the two-child limit will be applied to the third child. However, if a woman has two or more children non-consensually (i.e. through rape or coercion), then has a child that is conceived consensually, she will not receive a child element for that youngest child.  

One of the mothers says: “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”.

The exception rules – or so-called rape clause – are highly controversial because they force women to disclose the abuse inflicted on them in order to access benefits and have been criticised for putting survivors of abuse at risk of re-traumatisation. The facts of these cases again raise the question as to whether a policy like the two-child limit that requires these exceptions should have any place on the statute books. The cases also shine a spotlight on the crucial role that social security can play in helping women and children to rebuild their family life after violence, and show that rules like the two-child limit risk jeopardising this recovery. 

The women have been granted permission by the High Court to bring a judicial review case against the rules. They say that the rules breach their rights under Article 3 of the European Convention on Human Rights (ECHR), which is the right not to be subjected to degrading and inhumane treatment, because they prevented them from claiming an exception to the two-child limit. The women also argue the provisions are discriminatory on several grounds. *

Anonymity orders and reporting restrictions are in place for the women and their children, who are represented by Child Poverty Action Group. 

Alison Garnham, Chief Executive of Child Poverty Action Group, said: 

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. Social security should provide stability and support at times of need, but the brutality of the two-child limit is plain to see in what these women and children have been through. Their experience should focus minds on the need to abolish the policy in its entirety before more damage is done. 

The first mother – referred to by the court as ‘EFG’ - has four children. Her two eldest children were conceived through rape in a violent and coercive relationship that began when she was a teenager. The abuse and control continued for many years despite numerous calls to police and social services by concerned neighbours. This mother’s third and fourth children were conceived consensually in a later long-term relationship.

When pregnant with her third child the mother contacted the DWP to ask whether she would receive a universal credit child element for the child she was carrying, because her first two children were conceived non-consensually. She had to give details of her previous abuse on numerous occasions before eventually being told that she would need to update her details when the baby was born and the matter would then go to a DWP decision-maker. She followed these instructions and also attended a Jobcentre after her child was born, where she had to recount the details of the abuse once again. During the jobcentre appointment, a form which had been completed by her perinatal mental health nurse that evidenced the abuse that she had experienced, was read aloud by a member of staff within earshot of a security guard. Eventually, a child element was paid for the third child which meant she had a UC child element for each of the three children she had at the time. But, when her fourth child was born, the DWP refused an exception for this child, removed the allowance for her third child because it was an error, and initially asked her to repay it (at more than £4000). 

The mother is now struggling to manage financially with only UC child elements for two of her four children.  

She says “In a normal month, I can manage for the first three weeks, but usually need to borrow money for the last week. We live very frugally and the children do not have treats or days out. This makes me feel very guilty and unworthy as a parent.  

“I buy clothes for myself and my children from charity shops and have also been referred to baby banks for the youngest two children. I have borrowed money from [my partner’s] family to pay for school trips, uniforms and school shoes for the older two children. All the children’s toys come from charity shops. I have had some support from food banks, but have reached the referral limit so this is no longer an option. 

“I was able to carpet one room of our home through a finance agreement but every other room has the old, dirty carpets of the previous tenants, which I cannot remove, as this would leave the house too cold for the children. 

“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.”

The second mother bringing this challenge (referred to as ‘LMN’) has six children, three of whom live with her. She met the father of her older children when she was a teenager. He was violent and controlling. He prevented her from working and even attended medical appointments with her, including appointments relating to pregnancy and birth control, to retain control over all aspects of her life. This man was convicted of domestic abuse offences inflicted on the mother and she has an indefinite non-molestation order against him. She escaped this abuser but became pregnant by another violent and coercive man. The violence inflicted on her in this relationship resulted in her older children being taken into local authority care.

She worked with social services to maintain contact with her older children and in time one of the older children returned to live at home. At the time of the reunification Children’s Social Care Services stated: “[the mother] ..will need to receive benefits for all three of her children, for the reunification of [the older, returning child] to succeed’. 

However, when the older child came home, the youngest child became the ‘third’ child under the two-child limit ordering rules. The older child was now the eldest (or first) child in the household and could not therefore be given an exception despite having been conceived non-consensually. This meant the mother only received UC child elements for two of the three children living with her (the older, returned child and the second child, but not the youngest). 

Later the mother was advised that she could apply for an exception for her youngest child. She submitted an application and was granted an exception. This means she now has a child element for each of the three children living with her, although she went for years without this support, amounting to thousands of pounds which will not be backdated. The mother’s other children may return to live at home in future, which will change the children’s “order” and may mean that she needs to re-engage with domestic abuse services or other professionals, and re-tell her abuse in order to apply for an exception to ensure that she receives support for each of her children.

Note to editors:

Anonymity orders and reporting restrictions are in place for the two claimants and their children. Pursuant to s.11 of the Contempt of Court Act 1981, there must be no publication of the identity of either Claimant or of any matter likely to lead to their identification in any report of, or otherwise in connection with, these proceedings. The claimants must be referred to orally and in writing, in place of their names, as LMN and EFG - https://cpag.org.uk/sites/default/files/2024-10/LMN%20EFG%20AC%202023%20LDS%20000259%20000260%20Fordham%20J%20order%2010.10.24%20approved.pdf

The High Court gave permission for a judicial review on Thursday 10^th October but due to circumstances relating to the anonymity orders and reporting restrictions, CPAG has not publicised the decision until today. 

The High Court’s judgement is here https://www.bailii.org/ew/cases/EWHC/Admin/2024/2577.html  

The two-child limit denies the child element of universal credit and tax credits worth up to £3,455 per year to third or subsequent children born after April 2017. 

Exceptions can be applied for a third or subsequent child likely to have been conceived as a result of non-consensual sex or at a time when the woman was in an abusive relationship, under ongoing control or coercion by the other biological parent. Women cannot claim this exception if they live with the other biological parent of the child. To claim an exception women must complete an official form with the help of an approved third-party professional who must give supporting information showing the applicant’s circumstances meet the conditions for an exception. Approved third-party professionals include healthcare professionals, social workers and specific organisations such as rape crisis centres. 

*The women argue that the rules breach their rights under Article 3 of the European Convention on Human Rights (ECHR), which is the right not to be subjected to degrading and inhumane treatment, by placing them at increased risk of future harm due to having inadequate financial resources, and by failing to mitigate and make reparations for the past harms that they have suffered by reducing the impact of the financial disadvantage they experienced as a result of the domestic violence abuse inflicted on them. 

The women also say that the rules breach the ECHR by discriminating against women whose first or second children are conceived non-consensually, compared with adoptive parents or kinship carers, who are entitled to a child element of UC for children that join the family through adoption or kinship care orders, regardless of whether there are already other children in the family. In addition the women say they are discriminated against because they are treated no differently to parents with three or more children, all of whom were conceived consensually, even though they are in markedly different positions. 

Media contact: Jane Ahrends, CPAG press officer 07816 909302