“(1) A benefit known as universal credit is payable in accordance with this Part. (2) Universal credit may, subject as follows, be awarded to— (a) an individual who is not a member of a couple (a ‘single person’), or (b) members of a couple jointly. (3) An award of universal credit is, subject as follows, calculated by reference to— (a) a standard allowance, (b) an amount for responsibility for children or young persons, (c) an amount for housing, and (d) amounts for other particular needs or circumstances.” (a) an individual who is not a member of a couple (a ‘single person’), or (b) members of a couple jointly. (b) an amount for responsibility for children or young persons, (d) amounts for other particular needs or circumstances.”
“(1) Whether a person is responsible for a child or qualifying young person for the purposes of Part 1 of the Act and these Regulations is determined as follows. (2) A person is responsible for a child or qualifying young person who normally lives with them.”
“24A. — Availability of the child element where maximum exceeded (1) Where a claimant is responsible for more than two children or qualifying young persons, the amount mentioned in section 10(1) of the Act is to be available in respect of— (za) any child or qualifying young person in relation to whom an exception applies in the circumstances set out in— (i) paragraph 3 (adoptions) or paragraph 4 (non-parental caring arrangements) of Schedule 12; or (ii) paragraph 6 of Schedule 12 by virtue of an exception under paragraph 3 of that Schedule having applied in relation to a previous award; (a) the first and second children or qualifying young persons in the claimant's household; and (b) the third and any subsequent child or qualifying young person in the claimant's household if— ….. (ii) an exception applies in relation to that child or qualifying young person in the circumstances set out in paragraph 2 (multiple births), paragraph 5 (non-consensual conception) or, except where sub-paragraph (za)(ii) applies, paragraph 6 (continuation of existing exception in a subsequent award) of Schedule 12…” (za) any child or qualifying young person in relation to whom an exception applies in the circumstances set out in— (i) paragraph 3 (adoptions) or paragraph 4 (non-parental caring arrangements) of Schedule 12; or (ii) paragraph 6 of Schedule 12 by virtue of an exception under paragraph 3 of that Schedule having applied in relation to a previous award; (ii) an exception applies in relation to that child or qualifying young person in the circumstances set out in paragraph 2 (multiple births), paragraph 5 (non-consensual conception) or, except where sub-paragraph (za)(ii) applies, paragraph 6 (continuation of existing exception in a subsequent award) of Schedule 12…”
“24B. — Order of children and qualifying young persons (1) Subject to paragraphs (2) and (2A), the order of children or qualifying young persons in a claimant's household is to be determined by reference to the date of birth of each child or qualifying young person for whom the claimant is responsible, taking the earliest date first. ….. (2A) Any child or qualifying young person to whom regulation 24A(1)(za) applies is to be disregarded when determining the order of children and qualifying young persons under this regulation….”
“Prohibition on Discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
“…vulnerable women who have endured abusive relationships, including coercive and controlling behaviour up to and including rape. Their histories of survivorship are told in their witness statements. They are chilling accounts of appalling domestic abuse: vulnerable girls barely out of childhood themselves caught in toxic relationships, or repeating cycles of such relationships, in which their personal, reproductive and family autonomy is acutely compromised by the physical, sexual and emotional violence of controlling perpetrators.”
“15. LMN was 16 years old when she found herself in an abusive relationship with X. He was controlling and violent from the outset. She moved in with him very quickly and soon found herself with an unplanned pregnancy. After her first child was born, she was particularly violently assaulted by X, and police and social services became involved. LMN subsisted in this controlling and violent relationship for 12 years. Three further children were born in circumstances in which the pregnancies were not planned. She finally fled the relationship. X was ultimately arrested and imprisoned because of his treatment of her. 16. LMN quickly fell into a second violent and controlling relationship, with Y. It was short-lived. But the local authority was sufficiently concerned about the welfare of her four children in proximity to Y's violence, that it removed them from the household, initially placed them with their birth father X, and six months later took them all into care. LMN was at this point pregnant with her fifth child, conceived in the relationship with Y. 17. Following the end of the relationship with Y, LMN, again, quickly fell into a third violent and controlling relationship, with Z. She fell pregnant with her sixth child. She contemplated a termination, but Z would not permit it. Within a year of the sixth child being born, the local authority made arrangements for her second child to return from care to live with her. 18. LMN's UC entitlement was then calculated on the basis that the child element would be paid in respect of the first two in age of the children living with her—her second child (X's child, recently returned from local authority care), and her fifth child (Y's child). But the child element would not be paid in respect of the youngest of the children living with her (Z's child) because it could not be established that this child fell within the NCC exception. LMN does not challenge that particular decision in these proceedings (and indeed it appears that the youngest child has since been recognised as NCC and the exception applied, although not with retroactive effect). Her challenge is to the regulations that produce the result that for a three-child family no additional UC child element is paid even though the first two were NCC children, one of whom rejoined the family from local authority care after the youngest child was born. 19. EFG was 15 when she left home, and 18 when she fell into a violent relationship with W. She became pregnant with his child. Ten days after the boy was born, W raped her. A pattern of repeated rape and controlling behaviour took hold. 20. EFG became pregnant again: her daughter was born prematurely and died shortly afterwards. She became pregnant again as a result of a rape very shortly afterwards, with the same sad outcome: her second daughter was born prematurely and did not live long. At around this time, her son was taken into local authority care, and was later adopted. 21. The following year, EFG became pregnant twice again. On each occasion W forced her to terminate the pregnancy. 22. Two children followed after that, a daughter and a son, each conceived by rape. After a particularly violent attack, in which EFG feared for her life, she fled with her two children. W killed himself shortly afterwards. 23. EFG was able to move on to a new, consensual, relationship. An unplanned pregnancy ensued, but EFG and her partner proceeded with it on the basis that her partner was reassuring that he would be able to support her and all three children. But he lost his job. EFG updated her UC claim when her son was born. It appears she was told (erroneously) that the fact that her two older children were NCC meant the child element would be available for the new baby. Her son was followed by a daughter, another unplanned pregnancy. At this point, she was told the UC child element was not after all payable for either of her last two children. Again, she does not challenge in these proceedings that particular sequence of decisions. Her challenge is to the regulations which produce the result that a family comprising two children conceived by rape, followed by two unplanned children in a consensual relationship, has no exception from the two-child limitation, while a family comprising the latter followed by the former does, and receives the child element for all four.”
“41. First, they object that the Regulations treat UC recipients who are mothers of NCC children the same as UC recipients who are mothers of consensually conceived children, when that difference ought to have led to their being treated differently. This is a Thlimmenosargument. It is a challenge along the following lines. The two-child limitation applies to both groups of mothers. No UC child element is available to either when a third child is born. But the Regulations elsewhere expressly recognise that there is a material difference between the two classes. In the first place, there is an exception from the limitation for the mother of any third or subsequent child who is NCC. And, in the second place, a large part of the rationale for the statutory scheme is the element of choice about bringing children into a family; but mothers of first or second NCC children did not choose to do so. Further, the nature and quality of the choice available to a mother of two NCC children to have a first consensually conceived child is distinctively and relevantly different from the choice available to a mother of two consensually-conceived children to have a third. 42. Second, they object that the Regulations treat UC recipients who are mothers of NCC children differently from UC recipients who have adopted or are caring for other people's children when they are in an analogous or relevantly similar situation. The adoption and non-parental caring exceptions are not subject to the “ordering” provision, but the NCC exception is. They say that mothers of NCC children have an analogous decision to make about whether and how they go on to accept such a child into their family. NCC children, particularly where the non-consensual element arises out of an abusive or violent continuing intimate relationship may be more likely than others to need to be taken into local authority care on that account. That should be compared to the non-parental care ground that a claimant “has undertaken the care of [a child] in circumstances in which it is likely that [the child] would otherwise be looked after by a local authority” (paragraph 4(2)(h) of Schedule 12 to the Regulations). If taken into care, NCC children may be more likely to be returned to their birth mother to unpredictable timetables (as in the case of LMN's “first” child). So, the argument goes, the imperative of homing an NCC child with their birth mother as an alternative to residential care is analogous to the imperative of homing with adoptive parents or non-parental carers a child who would otherwise be cared for.”
“71. I turn, therefore, to the key question of the overall justification for the measure impugned, containing as it does (a) an NCC exception from the two-child limitation, but (b) differential ordering provisions for the NCC and non-parental exceptions, and (c) making no special provision in respect of third or subsequent (consensually conceived) children born to mothers of NCC children.”
“85. First, the measure, and the comparative impact, challenged by the Claimants makes (or elects not to make) exceptions to a statutory rule which has already been determined to pursue important and legitimate aims and to be justifiable as a matter of law in its differential impact on women and children. I cannot depart from the rationale of that conclusion. 86. Second, the measure impugned is a piece of secondary legislation. The powers under which it was made were conferred by a piece of primary legislation, or law reform, which the Supreme Court considered to have a particularly high calibre of democratic legitimacy: a manifesto commitment which had been subject to intense parliamentary scrutiny during the legislative process. The exceptions policy reflected in the original regulations had been subjected to and emerged from that intense scrutiny and debate. The exercise of the power to make those regulations in due course had been further subject to public consultation and Parliamentary scrutiny. The Regulations themselves were subject to affirmative resolution procedure in Parliament. 87. The modification of the Regulations to disapply the age-ordering provision for the non-parental exceptions was not itself the subject of scrutiny outside of government. But it was subject to close scrutiny as part of the policy-making process within government. And it is not the disapplication itself which is under challenge but the comparative maintenance of simple age-ordering for mothers of NCC children. It is not quite right to say, as Ms Monaghan suggested at one point, that “the ordering provisions” were not consulted upon. The consultation on the original regulations was explicit (at para 14) that all of the exceptions as originally proposed, and as duly given effect to and subsequently retained for the NCC exception, applied in respect of “a third or subsequent child ”
“…would also touch on something very fundamental: the nature and law of parental responsibility. Birth mothers have legal rights and responsibilities in relation to all their children, however conceived, and without distinguishing between them. The “equal value” aim echoes something very basic indeed about family law.”
“99. In my judgment, the limited qualification of the primary legislation by the Regulations challenged in this case, cannot ultimately lead to any different place. This challenge again engages directly the issue of the balance between the interests of mothers of two NCC children—and those children themselves—in receiving extra financial support from the state, and the interests of the community in expecting all mothers with parental responsibility for their children to discharge that responsibility and manage family choices thereafter within an overall economic framework which does not unfairly disadvantage unsupported families. It is a competition between two socioeconomic versions of fairness. The competing arguments about where a “fair and reasonable” balance can be struck in this matter are not the sorts of argument a court can legitimately arbitrate or, where they have been settled in a contested political process, with which a court can legitimately interfere.”
“106. To the extent that a challenge to a failure to exempt the situation of mothers of NCC children—including by the “non-privileging” of the addition of “chosen” biological children to NCC families—is a case for that to be considered on its own merits, the aims that non-exemption pursues are those of the primary legislation. The scheme as a whole has always been said by its critics to have a high potential to produce economic consequences which deserve labels such as “harsh” and “unfair”, not least in circumstances of particular and unchosen disadvantage—and to be defended by its advocates by reference to the “unsustainable unfairness” of doing otherwise. Ms Monaghan makes an argument that the present claimants’ predicament is an example of unfairness in the present system, and perhaps not the only one. But I am bound to apply the principle of proportionality and exercise my evaluative role in relation to it in a way which is “consistent with the separation of powers under our constitution”