Two women who conceived their eldest children while they were in violent and controlling relationships have lost a legal challenge to the rules around the two-child benefit cap.
A high court judge said the accounts of the abuse the women faced when they were “vulnerable girls barely out of childhood” were “chilling”.
But in a judgment delivered on Friday, Justice Collins Rice said it was for politicians to settle the matter, not the courts.
The women, and campaigners who support them, said they were disappointed but would fight on to have universal credit rules changed.
The two mothers, identified only as LMN and EFG, launched a challenge to the rules around the so-called rape clause in universal credit claims at a court in Leeds in June.
The two-child cap for universal credit claims has exceptions to cover a limited number of circumstances, including if a child is conceived nonconsensually. But the court heard how this only applies to third or subsequent children, leaving some women unable to utilise this exception if, for example, their first two children are conceived after rape but they have further children in consensual relationships.
The women, whose claim was against the Department for Work and Pensions, were supported by the Child Poverty Action Group (CPAG), which describes the benefit rules as “inhumane”.
The judge said the two women endured abusive relationships that included rape. “They are chilling accounts of appalling domestic abuse,” she said. “Vulnerable girls barely out of childhood themselves caught in toxic relationships, or repeating cycles of such relationships, in which their personal, reproductive and family autonomy is acutely compromised by the physical, sexual and emotional violence of controlling perpetrators.”
She said the women were “among the most harmed and vulnerable” members of society while as mothers they were “making an important and valuable” contribution to it.
The judge said CPAG had brought a legal challenge to the two-child cap before. “That made its way to the supreme court, which, in 2021, firmly returned the matter to the political realm.”
She said she had reached the same place as the supreme court did before, saying it was “a policy question dealing in social, economic, moral and ethical subject matter” and a “political law-reform question”.
The judge added: “The law does not compel a government, or a parliament, to provide the answer the claimants seek. This claim is dismissed accordingly.”
In a statement after the ruling, the mother named EFG said: “All of my choices were taken away from me for years by my abuser before I fled. I’ve fought hard to get on with my life for me and my kids. But the two-child limit makes it more difficult.
“The government says that the exceptions are to protect people who – like me – didn’t have a choice about the number of kids in their family, but the rape clause doesn’t do that. The rules need to change to protect families like mine. The result today is disappointing but I will keep going and fight this to the end.”
The other mother, LMN, said: “I want to keep going with the case as I feel like it’s against my human rights. When my oldest came back to live with me from care and before I got the exception for my youngest, we had to survive on less money. That stopped me doing things with the children – I never planned on having the children but that’s not their fault.”
Claire Hall, a solicitor at CPAG who represented the women, said they would look at appealing against the decision, but in the meantime, “all eyes are on the government which has the chance to do the right thing and abolish the inhumane two-child limit in the autumn child poverty strategy”.
Hall added: “Our clients have provided their children with safe and loving home environments but the rules have failed to protect them and their children from the impacts of the two-child limit.”
A Department for Work and Pensions spokesperson said: “Violence against women and girls is a national emergency – and our mission is to halve it within a decade. Victims of rape and coercion should be treated with dignity and respect.
“This court decision is about whether a policy – designed by the previous government – was being implemented lawfully. This policy will be considered along with all other levers including social security reform by the child poverty taskforce. The group will publish the child poverty strategy in the autumn.”
