The government is facing a high court challenge to its two-child limit on benefit claims, the basis for the hugely controversial “rape clause” policy, it has emerged.
Child Poverty Action Group (CPAG) said it had been granted permission to seek a judicial review of the limit, which stops child tax credits or universal credits being paid for more than two children in most cases.
CPAG, which issued the high court claim against the pensions secretary, David Gauke, in August, argues that the limit is discriminatory and breaches the right to a private and family life under human rights law.
On Tuesday it was told it had been granted permission for a judicial review of the policy, though it is unlikely this will begin until after Christmas.
Carla Clarke, a solicitor for CPAG, said the two-child limit put “women in particular in invidious positions about the choices they have to make” and thus breached the right to family life.
She said: “You have the government saying this is about people making rational decisions on whether they have more children. But if birth control fails it puts a woman in the position of deciding if they continue with the pregnancy, knowing the child will not bring any more child tax credits into the family, or have an abortion.
“There’s a lot of women who might not have any particular religious persuasion but, as a fundamental ethical matter, will not entertain abortion. To put women through that is unbelievable.”
The legal challenge also argues that the limit unlawfully discriminates against children with multiple siblings, and against families with religious or moral opposition to birth control.
It argues that the justification for the two-child benefits limit by the Department for Work and Pensions (DWP) is “logically flawed”.
The DWP argues that it is meant to ensure those claiming benefits have to make the same choices as families in work, and thus incentivises claimants to get work or make “progression” in their jobs.
But Clarke said 70% of tax credit recipients were already in work and often found it hard to earn any more. “The nature of the reason you are on tax credits is because you are in low-paid work where progression is limited,” she said.
The two-child limit has certain exceptions, one of which is that benefits will be paid if a mother can demonstrate that a third or later child was conceived because of rape, generally known as the rape clause.
This element has prompted a vehement reaction from women’s aid and rape crisis groups, who argue it is inhumane to oblige traumatised women to explain the circumstances of a rape as part of a benefits claim.
The eight-page form to apply for the exemption obliges women to sign a declaration saying they were raped or otherwise coerced into sex, give the child’s name, and confirm they do not live with the rapist.
Women’s aid charities say the latter element fails to take into account that most rapes occur within domestic violence relationships. Alison Thewliss, the SNP MP who first campaigned against the clause, has described it as “one of the most inhumane and barbaric policies ever to emanate from Whitehall”.
Thewliss welcomed the upcoming legal case. “The two-child limit is ideologically driven and will only plunge more families in to poverty. It is in breach of the UK’s obligation under the UN convention on the rights of the child,” she said.
“It is estimated that around 250,000 children will be pushed into poverty as a result of this measure by the end of the decade, representing a 10% increase in child poverty. Add to this the despicable rape clause, whereby women have to prove they have been raped just to put food on the table. Anyone with an ounce of humanity can see how toxic and ill thought out this policy is.”
For child tax credits, the new rules limit payments for third or subsequent children born on or after 6 April 2017. But for universal credit, which is gradually replacing the tax credit system, the limit applies irrespective of when the child was born.
As well as rape, other exemptions include multiple births, and adoption from local authority or kinship care.
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