Mothers contest two-child benefit cap 'rape clause'

Two women who had children when they were in violent and controlling relationships are claiming they were unfairly denied child benefits.

The mothers, identified only as LMN and EFG, launched a challenge to the universal credit two-child cap at Leeds Administrative Court on Tuesday and the so-called "rape clause".

The exception allows for financial support for a child conceived non-consensually if that child is the third or subsequent child, but does not apply to further children if a mother's first two children were conceived after rape.

Karon Monaghan KC, representing the women, said the rule was "irrational" and breached the women's right not to be discriminated against.

She told the court that both women were young and vulnerable when they began relationships in their teens and first became pregnant.

She explained that they were subjected to regular violence and coercion, with one describing how she was choked to unconsciousness and raped multiple times.

Ms Monaghan explained how LMN had older children in care and two living with her, but then one of the older children returned to her home.

She then had three children living in her home, but she was refused an exception to the two-child limit under these "ordering provisions" relating to non-consensual conceptions.

Ms Monaghan said EFG had two children who were conceived non-consensually and then another from a consensual relationship.

She was initially paid the child element of universal credit for this third child, but this was later rescinded, after a fourth child was born.

Ms Monaghan told the judge, Mrs Justice Collins Rice, the state had an obligation under Article 3, which prohibits torture and inhuman or degrading treatment or punishment, to ensure that "women are not penalised" and "they have the resources to support themselves".

The barrister said that, if this anomaly in the rules was rectified, "we are talking about a drop in an ocean", in the face of a £300 billion-plus national benefits budget.

Neither of the women, whose representation is being provided by Child Poverty Action Group (CPAG), were in court on Tuesday.

Galina Ward KC, for the Department for Work and Pensions (DWP), told the court that the exceptions to the two-child cap, which also include circumstances around kinship care and multiple births, were intended to "kick-in" when women are not able to make a choice about having a child.

She said this case was "fundamentally different" to one which was the subject of a 2018 High Court ruling that similar exception rules relating to children in kinship care arrangements were unlawful.

She said the DWP also did not accept that women who have non-consensually conceived children and then choose to have another child "are making a fundamentally different choice" to women whose children are consensually conceived.

The case continues on.

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