Two-child limit non-consensual conception exception ordering rule
- Current status
- Judgments
- Background
- Legal issues
- Grant of permission to apply for judicial review
- What can a claimant in a similar position do?
Current status
The permission renewal application was considered at an oral hearing on 10 October 2024 and permission to apply for judicial review was granted. The case will be listed for a substantive hearing at a later date. An anonymity order and reporting restriction is in place in respect of the claimants and their children.
Judgments
Background
The two-child limit restricts support for children in families claiming child tax credit or universal credit to the first two children (subject to limited exceptions). One of the exceptions to the rule is where the child was conceived of rape or coercive control. Women cannot claim this exception if they live with the perpetrator who is the other biological parent of the child. There is an ‘ordering’ requirement within the non-consensual conception exception, which means that it cannot apply to the first two children, only to the third or subsequent child. This means that if a woman had two consensually-conceived children, and then had a third non-consensually conceived child, the exemption would apply, and she would be able to receive child element in respect of the third child, in addition to a child element for each of the two older children. However, if a woman’s first two children were conceived non-consensually (-ie through rape or coercion), and then she had a child conceived consensually, she cannot rely on the exemption and would not receive child element for that youngest child.
The legal claims were filed on behalf of two mothers in November 2023. The first mother has four children. Her two eldest children were conceived through rape in a violent and coercive relationship that began when she was a teenager. This mother’s third and fourth children were conceived consensually in a later long-term relationship and due to the ‘ordering’ rule, she cannot receive a child element for her two younger children. The second mother bringing this challenge 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, and was later convicted of domestic abuse offences inflicted on her. She has a non-molestation order against him. She subsequently became pregnant by another violent and coercive man. The violence she experienced 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 shortly after her youngest child was born, one of her older children returned to live at home. At this point, the older child became the ‘first’ child in the household and her youngest child became the ‘third’ under the two-child limit ordering rules. This meant that the mother could not be given a non-consensual exception in respect of her youngest child and missed out on a child element for this child.
Legal issues
The two-child limit policy has at all times had exceptions for ‘multiple births’, ‘adoptions’, ‘non-parental caring arrangements’ and ‘non-consensual conception’. Initially, all of the exceptions were limited to third and subsequent children. In R (SC) v Secretary of State for Work and Pensions [2018] EWHC 864 (Admin), [2018] WLR 54, the High Court stage of CPAG’s challenge to the general two-child limit policy, the High Court had declared that the restriction on the exception on ‘non-parental caring arrangements’ to children who entered the household as the third or subsequent child was irrational. After the 2018 Supreme Court decision on SC, the Secretary of State made regulations 3(3) and 3(4) of the Universal Credit and Jobseeker’s Allowance (Miscellaneous Amendments) Regulations 2018, amending the Universal Credit Regulations 2013 ('UC Regs') by removing the limitation of the ‘adoptions’ and ‘non-parental caring arrangements’ exceptions to third and subsequent children, but retaining them in other cases. This is reflected in Regulation 24A(1)(za) of the UC Regs.
The ‘ordering requirement’ which restricts exceptions to the two-child limit to the third or subsequent child was retained for non-consensual conception. This is set out in Regulation 24A(b)(jj) of the UC Regs. The Claimants in this case argue that that the operation of the non-consensual conception exception, specifically the ‘ordering’ requirement, is discriminatory under Article 14 of the European Convention on Human Rights (ECHR) read with Article 8, Article 1 to the First Protocol (A1P1), and Article 3 ECHR contrary to the Human Rights Act 1998 (HRA); a breach of their Article 3 ECHR rights contrary to the HRA; and irrational.
1A. Discriminatory breach of Convention rights
The Claimants argue that the ‘ordering’ requirement within the non-consensual conception exception is discriminatory under Article 14 ECHR read with Article 8, A1P1, and Article 3 ECHR.
Breach of Article 14 ECHR read with Article 8 and A1P1
The provision of child elements in the Claimants’ UC is a matter within the ambit of Article 8 and A1P1. On the basis of their status as mothers of non-consensually conceived children, the Claimants argue that they are:
- treated less favourably than parents of a non-parental caring arrangements child or an adopted child – this is conventional ECHR discrimination whereby a substantive ECHR right is engaged, the complainant has a status protected by Article 14, and there is a difference in treatment between the Complainant and an appropriate comparator, and the difference in treatment is unjustified; and
- treated the same as parents of a consensually conceived child – this is Thlimmenos ECHR discrimination, whereby there is a failure to distinguish between groups in relevantly different circumstances without justification.
Difference in treatment to parents of children in non-parental caring arrangements unjustified
According to the Explanatory Memorandum to the Child Tax Credit (Amendment) Regulations 2018, the Government’s original rationale for removing the ‘ordering’ requirement for ‘adoptions’ and ‘non-parental caring arrangements’ cases was to “remove any discouragement for families considering looking after children who may otherwise be at risk of entering into, or staying in, local authority care”. The Claimants argue that this rationale should apply in the same way to non-consensually conceived children, irrespective of the child’s order in the family, taking into account the heightened risk to children’s welfare and of spending time in local authority care for children in households with a history of domestic abuse against their mother. The Claimants argue that the ‘ordering’ requirement in the non-consensual conception exception is not rationally connected to the Government’s aim and does not strike a proportionate balance.
Equal treatment to parents of consensually-conceived children unjustified
In designing the original exceptions to the two-child limit, the Government had recognised that “not all parents are able to make the same choices about the number of children in their family”. The Claimants argue that the SSWP has discriminated against them by failing to treat their choices in circumstances where they have already had two non-consensually conceived children differently to those who have had two consensually conceived children. They refer to the importance of choices about family composition, as recognised by the UN Convention on the Elimination of Discrimination Against Women (‘CEDAW’).
Requirement not justified by administrative practicability
The Claimants argue that the ordering requirement from the non-consensual conception exception is not justified by the rationale of ‘administrative practicability’ – in fact, the regulations are presently intrusive for claimants. Removing the ordering requirement would be a simplification.
Justification requires heightened scrutiny
The Claimants argue that the Court should apply a relatively intensive level of scrutiny to SSWP’s justification for the discrimination they face, because it has a significant impact on the best interests of children conceived non-consensually and the welfare and autonomy of women who have been raped or subjected to coercive control. Heightened scrutiny is also required as the ‘ordering’ requirement is contained in secondary, rather than primary, legislation.
Failure to provide protection from domestic violence as a form of sex-based discrimination
The Claimants also argue that, as domestic violence is a form of discrimination against women, the failure to provide effective protection to the Claimants breaches Article 14 read with Article 3 ECHR.
1B. Breach of Article 3 ECHR
The state has a duty under Article 3 ECHR to protect against the risk of degrading treatment. This includes domestic violence (AE v Bulgaria – app.53891/20 [2023] ECHR 428 (23 May 2023), where the treatment is such as to “arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them”.
The Claimants argue that failing to exempt them from the two-child limit through the non-consensual conception exception breaches Article 3 ECHR because the abuse they have suffered from their ex-partners was degrading, and the States have a positive obligation to address the effects of such crimes. The Claimants argue that in determining the scope of the State’s positive obligations to prevent degrading treatment, it is necessary to refer to the requirements of specialised international instruments applicable to domestic violence, such as the Council of Europe Convention on preventing and combating violence against women and domestic violence (‘the Istanbul Convention’) and CEDAW. The Claimants argue that the inadequacy of the non-consensual conception exception is ineffective to comply with the Article 3 ECHR procedural obligation to provide effective protection against a breach because it places victims at an increased risk of future harm due to a lack of adequate financial support; and it fails to take steps to mitigate and make reparations for the past harm that they have suffered.
In his permission judgment, Fordham J notes SSWP’s acceptance of “considerations of inhuman and degrading treatment” in the background history of the birth of children from non-consensual conception [13]. The Claimants argue that these considerations should inform the Court’s analysis of the ‘ordering’ requirement within the non-consensual conception exception.
Further or alternatively, the Claimants argue that the discriminatory treatment they have suffered contrary to the ECHR and HRA amounts to irrational treatment.
2. Rationality
Finally, the Claimants argue that the ordering requirement is irrational. They refer to the High Court’s decision in SC, specifically its statement: “there is [no] rational justification for a parent's decision, about whether to have a child [consensually], to be affected by whether that decision was made before or after another decision, as to whether they should care for [a child conceived non-consensually], which could need to be made quite independently of a decision about having their own children [consensually]…”
The Claimants argue that it is irrational for the regulations not to provide for payment of extra benefit when a non-consensually conceived child enters a household from local authority care to be looked after by their biological mother, but to provide such payment in cases where the child is entering a different household.
Grant of permission to apply for judicial review
On 10 October 2024, the High Court granted permission to apply for judicial review to the Claimants, including an anonymity order and reporting restriction to protect the Claimants and their children. Permission to apply for judicial review was initially refused on the papers by order dated 30 May 2024.
In his grant of permission, Fordham J considered that the following questions would need to be considered in relation to the non-consensual conception exception. First, the “true nature of the ‘choice’ about family size” of a woman who has had a child or children as a result of rape or coercive control, and the relationship between the state and that parent. Second, the idea relied on by the SSWP about avoiding treating a non-consensually conceived previous-child as being of any ‘less value’ than a ‘natural’ child of the family, meaning that the family should face the same choice about a third child as a family not in receipt of CTC/UC (an argument that was unsuccessfully advanced by the SSWP in respect of children in non-parental caring arrangements and adopted children in the High Court stage of SC). Third, the relationship between the design of the non-consensual conception exception and the right (reflected in international law) to decide ‘freely and responsibly’ the number and spacing of children, in a context where there are accepted by the SSWP considerations of inhuman and degrading treatment.
CPAG expect the case will be listed for a substantive hearing at some point in 2025.
What can a claimant in a similar position do?
To apply for the non-consensual conception exception, a person must provide supporting evidence from an ‘approved person’ (such as a healthcare professional, social worker, or support worker) unless there is a conviction for rape or coercive or controlling behaviour in the UK or a similar offence abroad, or if one has been awarded criminal injuries compensation after a sexual offence, physical abuse or mental injury (if that offence/criminal injury resulted in the child’s conception). Claimants with third or subsequent children can obtain an exemption through this route. More information can be found on CPAG’s website: Exceptions to the two-child limit.
Claimants whose first or second children were conceived non-consensually and who are responsible for three or more children (where the third or subsequent children do not qualify for any other exemption) such that they are missing out on one or more child elements, should get in touch with CPAG at [email protected].