Mothers in High Court challenge over two-child limit ‘rape clause’

Child Poverty Action Group, which is supporting the women’s case, has described the current benefit rules as ‘inhumane’.

Two women are bringing a High Court challenge against the Department for Work and Pensions (Kirsty O’Connor/PA) (PA Wire)

A mother has accused the Government of telling her she was “raped at the wrong time”, as she and another woman got the green light to bring a High Court challenge over part of the two-child benefit limit policy.

The two women, neither of whom can be identified, are bringing legal action against the Department for Work and Pensions (DWP), saying the policy as it stands breaches their human rights.

The women became pregnant with two or more children non-consensually, while in abusive relationships that began when they were teenagers, the Child Poverty Action Group (CPAG) said.

Both of these women are subjected to the two-child limit despite the fact that they have conceived children non-consensually

Claire Hall, CPAG lawyer

The charity, which is providing their legal representation, said the women are challenging the rules on exceptions to the two-child limit for  universal credit (UC), on the basis that they are “discriminatory and irrational”.

The two-child limit was first announced in 2015 by the Conservatives and came into effect in 2017. It restricts child tax credit and the child element of UC to the first two children in most households.

The non-consensual conception exception, sometimes known as the rape clause, can be made for children conceived as a result of non-consensual sex or at a time when the woman was in an abusive relationship.

Solicitor Claire Hall, head of strategic litigation at CPAG, 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.”

One of the women, known only as EFG, conceived her two eldest children through rape in a violent and coercive relationship.

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

Alison Garnham, CPAG

She has been told she cannot claim the benefit for her third and fourth children, both of whom were conceived consensually in a later long-term relationship.

Speaking through the CPAG, she 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.”

The other woman, a mother-of-six referred to in the case as LMN, was subjected to domestic abuse and violent and coercive behaviour by former partners with whom she had children.

CPAG said that while she 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”.

Each woman is estimated by CPAG to have missed out on thousands of pounds of support because of the current policy.

Mr Justice Fordham, after a hearing last month, said: “I have arrived at the conclusion that the issues in this case warrant ventilation and authoritative resolution at a substantive hearing.”

No date has been set but CPAG said it expects a hearing some time in 2025.

Alison Garnham, CPAG chief executive, 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.”

A DWP spokesman said: “We cannot comment on ongoing legal cases.”