Overview of the two-child limit
The two-child limit is a measure that limits the welfare supports a person can claim in respect of their children to the first two children they have, regardless of actual need. It applies to child tax credit and universal credit (which replaces Child Tax Credit, Housing Benefit, Income Support, income-based Job Seeker’s Allowance, income-related Employment and Support Allowance and Working Tax Credit). The rule applies to a birth of a third child after 6 April 2017.
After the first two children, benefits can only be claimed in respect of a third and further children if one of the exceptions applies – if a pregnancy results in a multiple birth and prior to that pregnancy there were fewer than two children in that household, where the pregnancy was the result of non-consensual sex and the claimant can prove that she is not living at the same address as her attacker, or where the child in question was adopted or is being cared for in a non-parental relationship by the claimant.
The amount lost per affected child is up to £2,780 annually. It is estimated that by the time Universal Credit is fully implemented, the two-child cap will have pushed an additional 200,000 children into poverty across the UK.
General issues with the two-child limit
The context for the introduction of the policy was the Conservative Party’s 2015 manifesto commitment to cutting £12 billion from the welfare budget. The stated justification for the measure is ‘[t]he government believes that those in receipt of tax credits should face the same financial choices about having children as those supporting themselves solely through work’. It is difficult to accept this justification at face value, as nearly 70% of families who are in receipt of child tax credits are already in work.
The measures have provoked condemnation from a broad coalition of opponents including reproductive rights organisations, anti-poverty campaigners, women’s rights activists, religious leaders and single-parent family advocates. The policy is a regressive mechanism of allocating benefits and burdens, as it applies without regard to need. It has a disproportionate impact on women, who are most commonly the heads of one-parent households. It fails to meet its stated aim of ensuring that individuals in receipt of welfare supports face the same choices about having kids as those in active employment do, given that the majority of affected families are already in work. In many cases, the value of the lost supports can’t be made up by taking on additional hours at work, and so the policy traps families in poverty. The Child Poverty Action Group sums up the situation succinctly: ‘if you set out to design a policy to increase child poverty, then it would be hard to do much better than the two-child limit’.
Family planning: The policy assumes that decisions about the number of children a person will have can be neatly planned, when this is far from the truth. No contraception is 100% reliable. BPAS has previously commented that the majority of women who avail of abortion services in our clinics are using at least one type of contraception, with a quarter of women using a hormonal contraceptive (pills, patches or rings) or a long-acting reversible contraceptive (IUD, injection, implant or IUS) when they became pregnant. The policy also applies to individuals who were already pregnant when the policy was implemented, and couldn’t possibly have factored the change in policy into their decision to have a child or not.
Safety net: The government’s position on the two-child policy as incentivising sensible family planning entirely ignores the vital function welfare supports serve for families that experience unexpected financial hardship, for example due to the death or separation of parents, sudden illness, the onset of a disability, or an involuntary reduction in earnings. The policy expects recipients to be in a position to plan their financial circumstances for the 18 years following the birth of a child. Changes in financial circumstances can render the most carefully planned families susceptible to sudden and devastating poverty. Any family with more than two children that falls on hard times will be refused welfare payments in respect of their third and subsequent children.
‘Non-consensual conception’: Even in instances where a woman qualifies for an exemption because a child was conceived as a result of rape, she is required to recount the traumatic experience in order to avail of the exemption. It also requires that a woman availing of this exemption is not living at the same address as her attacker, which automatically disqualifies anyone who has not yet, or cannot exit an abusive relationship. One of the primary factors that leads women to remain in abusive relationships are practical barriers- their abusive partner controls the money they have access to so they cannot support their children otherwise, they fear the escalation in violence that often accompanies leaving a violent partner, or they fear having their children taken away. The way this exemption has been set up compounds the vulnerability of women by making demands that are impossible for many women to meet in order to be able to effectively support their children.
Implications of the two-child limit for reproductive choice
Turn2Us have also reported a trend of women seeking information about what their entitlements would be if they were to continue with the pregnancy, citing that the benefit check would help them decide whether to continue with the pregnancy, or terminate it. The driving claim behind the policy change is that it would incentivise claimants ‘to think carefully about whether they can afford to support additional children’. This policy presents women with a choice between falling into deeper poverty or having an abortion that she may not otherwise want.
When asked by Turn2Us about the effect the two-child limit has had on them, one respondent answered that as a result of the two-child limit she ‘had an abortion’; another that she ‘ha[d] to have an abortion as can’t afford another [child]’. For some women, abortion is not an option, either for legal or personal reasons: ‘I found out I was 5 months pregnant and now in a complete panic. I’m too far on for an abortion but have no way of supporting this child’.
The position of women in Northern Ireland
Women in Northern Ireland do not have access to legal abortion except in cases where their life is in danger from the continuation of the pregnancy. For many women, travelling to England for a termination is not an option; for financial reasons, because they are too ill to travel, because they lack the legal documents to leave and re-enter the country, because they’re too young to travel alone, or because they cannot escape a coercive relationship in order to travel to England. Ordering abortion pills from the internet is illegal, and several people have been convicted in the last number of years for having a medical abortion in Northern Ireland using pills sourced online.
The effect of this lack of reproductive control is apparent in the statistics of how many children Northern Irish women have compared to their British counterparts, as Northern Irish women have the highest average number of children in the UK. The Women’s Aid Federation of Northern Ireland submitted to the House of Lords Secondary Legislation Scrutiny Committee that the policy would:
‘. …doubly penalise poor women, who can neither afford to travel abroad to access abortion nor afford to lose their child tax credits. They may be forced into a choice between having a child and being forced further into poverty, or procuring medical abortion pills and risking up to life imprisonment.’
Because the measure does not track need, the effect of the policy is most devastating to families that are struggling the most. It imposes a much greater burden, relative to resources, on the poorest families. 18% of children in Northern Ireland live in conditions of absolute poverty, and the Northern Irish Commission for Children and Youth estimate that rates of absolute poverty will climb under this policy.
Legal challenges to the two-child limit
A legal claim was brought against the provision by a number of families who had been affected by the policy, alleging that the policy breached their Article 8, Article 12 and Article 14 rights under the European Convention of Human Rights (ECHR); namely, the right to a private and family life, the right to marry and found a family, the anti-discrimination guarantee, in addition to the right to peaceful enjoyment of one’s possessions under Protocol 1 of the ECHR. The claimants also alleged that, given the severe impact of the policy on child poverty, it is in breach of the UK’s obligations under the UN Convention on the Rights of the Child to give primary consideration to the best interests of the child.
The ECHR claims failed, though the court did find that the policy’s treatment of children in kinship arrangements was ‘perverse’ to the aims of the legislation, and therefore unlawful. The ordering arrangement was such that, in order to avail of the ‘kinship’ exemption, that child had to be the third child in a family, and in a case where that child was the second child and the claimant gave birth to a third child, the third child could not avail of the exemption.
The decision is currently under appeal. The appeal will be heard in December 2018. There is a possibility that if the appeal fails at the Court of Appeal that it could be appealed to the European Court of Human Rights.