The damaging legacy of the rape clause for three or more children

Families with two or more children claiming child tax credit face a bleak reality in policy that campaigners are fighting against

According to koodakpress، On 20 January 2017, all eyes were on Donald Trump. While billions of people watched the former reality television star being sworn into the highest office in the world, the UK government was quietly publishing the response to its consultation on limiting child tax credit to two-child families.

From 6 April that year, any woman claiming the equivalent of £53 per week for a third or subsequent child would have to fit into one of several exceptions – including declaring she had been raped or that she had the child within an abusive relationship.

“The consultation got universal disapprobation,” says Emma Ritch, executive director of Scottish feminist organisation Engender. “And it was only open for one month.”

Campaigners that contributed, such as Child Poverty Action Group, estimate that more than 250,000 children will consequently be pushed into poverty by the end of the decade, representing a 10 per cent increase in child poverty. The Equality and Human Rights Commission (EHRC) urged the government to delay implementation until it had carried out a full impact assessment, otherwise it was at risk of violating human rights law.

The government said it consulted widely on the issue and 52 organisations had submitted evidence. The policy and the rape clause were brought in, under the Welfare Reform and Work Act 2016, with the government declaring it would “restore fairness in the benefit system”.

Now, on the one-year anniversary of this policy, the government faces growing calls from charities and advocacy groups to answer questions as to how data is being collected and how the claims of rape and abuse are being handled by a separate team at HMRC.

“I’ve continued to ask questions, but ministers haven’t given me any answers, or reassurance or justification that this policy is either workable or necessary,” says SNP MP Alison Thewliss.

There is also a lack of clarity over the way in which benefits are being administered, given that the government’s call for third-party referrers, who would verify women have been raped or abused to claim money, has been dismissed by most large charities in Scotland.

“It’s a toxic policy for women’s health and wellbeing that we could not associate with,” says Marsha Scott, chief executive of Scottish Women’s Aid. “It would completely shift the relationship with the women we support. If there’s nobody to implement this policy in Scotland, I would think there might be room for challenging it legislatively or judiciously.”

The government responded that third-party referrers can include social workers, specialist support workers “from an approved organisation”, doctors, midwives, nurses and health visitors.

Within four months of the policy becoming law last year, Child Poverty Action Group issued a claim for judicial review in the High Court against the secretary of state for work and pensions, then Damian Hinds, on behalf of three families.

CPAG solicitor Carla Clarke told The Independent that the two-child policy was “deeply disturbing” and “ultimately unlawful”, treating some children as less deserving than others purely because of the order in which they were conceived.

“It places women, in particular, in the invidious position of deciding whether to continue with an unplanned pregnancy or to have an abortion,” she adds. “It removes the safety net for those families who had three or more children at a time when they were fully able to provide for them but then encounter job loss or sickness.”

The plaintiffs include two lone mothers who gave birth to a third child after the cut-off date. One is on income support, the other on working tax credit. The women did not intend to fall pregnant – one had been on the pill – but neither of them wanted an abortion. In the third household, a child being looked after under a child arrangement order was taken in as the family’s second child before the couple went on to have a natural child of their own. The father works full-time, while the mother is currently on maternity leave from her part-time job.

The case was heard in February this year. Even if the judge agrees with CPAG’s case, the policy still may not be scrapped. (Last June, the High Court ruled that a separate government benefit cap unlawfully discriminated against single parents with children under two. However, in March, the Court of Appeal ruled in favour of the government. The four families that brought the case are now going to the Supreme Court.)

“It’s yet another kick in the teeth after rounds of benefit changes that have left families trapped in poverty and struggling to afford rent or put food on the table,” says Sumi Rabindrakumar, research officer at Gingerbread, a charity that supports single parent families. “We hope that the judicial review judgment [of the two-child limit] recognises the detrimental impact of this policy and puts the needs of children first.”

In Northern Ireland, there is another layer of complexity. It is mandatory to report a crime such as rape, a hangover law from the Troubles, and if the perpetrator is identifiable, for example, the husband of the claimant, the person hearing the woman claimant’s case must report him to the police.

“Many women do not want to engage with the criminal justice system, or report someone that they are in a relationship with to police,” the Women’s Aid Federation Northern Ireland wrote in a statement last year. “They should not be forced to do so to access welfare.”

While the judicial review result is awaited, campaigners say the steam that first built up after April last year became harder to maintain. A petition to scrap the clause reached more than 25,000 signatures but was closed early when Theresa May called a snap election. In August last year, CPAG filed its paperwork. In November, the newly elected petition committee, chaired by Labour MP Helen Jones, forced the government to update its response to the petition, paying more attention to the impact on women. But the policy has not been voted on or debated in Westminster.

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