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Child Poverty Action Group (CPAG) is seeking leave to appeal to the Supreme Court on behalf of two lone mothers with children affected by the two-child limit.

The move follows a Court of Appeal decision today which recognised that children in families with more than two children were prejudicially affected by the policy, but considered that the court was not a suitable institution for deciding on the balance between the interests of children and the interests of the community as a whole in ensuring parental responsibility.

The case was brought on behalf of two lone mothers who each had more than one child before the policy started in April 2017 and who then gave birth to another child after that date.

The policy denies tax credits and universal credit to third and subsequent children born after 6 April 2017 save for very limited exceptions.

Neither of the mothers in the case intended to conceive the child born after 6 April 2017 – and one was using the contraceptive pill – but, for moral reasons, neither was willing to consider a termination of their pregnancy. One claims Working Tax Credit, the other Income Support in addition to child tax credit.

The Court of Appeal had to decide whether the differential treatment of children in families with more than two children could be justified by the rationale for the policy put forward by the government.

The government put forward three aims:

  • reducing the fiscal deficit by reducing public expenditure on welfare benefit
  • incentivising people to support themselves and their families through work
  • ensuring that the social security system is fair to taxpayers and making families in receipt of benefits face the same choices in deciding how many children to have as those who support themselves solely through work.

Two of these aims – reducing public expenditure and incentivising work – were found not to be “rationally capable of providing a justification for limiting entitlement to tax credits on the grounds of the number of children in a family”.

This was because reducing expenditure could not justify placing the burden on one particular group and because incentivising work is a generic aim applying equally to all people being supported through benefits and, therefore, could not justify cutting benefits payable to families with more than two children as opposed to families with two or fewer children.

The Court considered that the third aim of fairness and parental choice, when looked at in terms of interests of the children affected, could not be a valid basis for the differential treatment since the children have no choice over the size of family they are born into.

However, the Court went on to consider that parental choice and responsibility had to be taken into account also.

Since Parliament had considered the issues and passed the legislation, the Court concluded that it should be very slow to displace the balance struck by Parliament on a contentious issue of social and economic policy.

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Child Poverty Action Group’s solicitor Carla Clarke said: “We are disappointed to have lost the appeal overall, but are heartened by the court’s recognition of the interests of children and the need to take account of the UN Convention on the Rights of the Child.

“Today’s judgment should not be seen as supportive of the government’s position as it found that two of the three stated aims of the two child policy were incapable of justifying its prejudicial impact on families with more than two children.

“The government’s third aim of ensuring fairness to the taxpayer and that all face the same parental choices was found to have no justification from the perspective of the children affected.

“In relation to parents, we maintain that this is clearly undermined by the fact that two thirds of tax credit recipients with three or more children are in work and that the policy will also affect people who have their children at a time when they are able to support themselves solely through work, but at some time in the future may have a need for support from the social security system.

“In its first two years of operation, the two-child policy has led to an estimated 150,000 families being denied support for an additional child through tax credits or universal credit – so far its impact has been solely on babies and toddlers.

“By the time universal credit is fully rolled out in 2023-24, 300,000 more children will be in poverty as a result of the policy.

“We are seeking permission to take the case to the Supreme Court because we believe that all children are equally deserving of support regardless of their birth order.”

Disclaimer: This is an official press release from the Child Poverty Action Group.