In the last 3 years, the UK Supreme Court has adjudicated on three different cases involving social security benefits and children - widowed parent’s allowance, the lowered benefit cap and the two-child limit. The judgments can be analysed from a range of perspectives. From the very general: the role of unincorporated international human rights treaties in domestic courts; discrimination, what exactly needs to be justified and to what standard; and personal and political influences in judicial decision making. To the more specific: whether article 14 discrimination challenges have run their course in the social security field; how women as primary caregivers fare compared to men; and the treatment of the interests of children in an article 14 analysis.
This article focusses primarily on the latter perspective. In doing so, it builds on an earlier article by Dr Mark Simpson, published in early 2018, which examined the state of the jurisprudence immediately before these three Supreme Court decisions and responds to the question posed by Simpson of whether giving greater consideration to the best interests of children could impact positively on social security law.
This article first appeared in the Journal of Social Security Law (2022) vol. 29, issue 1. An earlier version of this paper was presented at the 2021 Socio Legal Studies Association Annual Conference.