LMN & Anor, R (on the application of) v The Secretary of State for Work and Pensions

This appeal concerns the operation of exceptions to the rule that the child element of universal credit was payable only for the first two children living in a household. There were two material exceptions. First, those who adopted, or cared for, a child would not be subject to the limitation and could claim the child element of universal credit for such a child even if they had two or more other children. Secondly, a parent would receive the child element of universal credit for a third or subsequent child where that child was the result of non-consensual conception. The two-child limit on the amount of the child element of universal credit was repealed with effect from 5 April 2025. This appeal concerns the statutory provisions in force prior to that date.

The two appellants, EFG, and LMN, are women who were the subject of sustained, physical, sexual and psychological violence by their former partners. EFG had a relationship with a violent man who subjected her to repeated rapes. She fled the relationship, with the two children in her household at the time, both of whom had been non-consensually conceived. The former partner then killed himself. EFG formed a new consensual relationship and had a third and fourth child who were conceived consensually. Due to an administrative error, she initially received the child element of universal credit for three children but, when her youngest child was born, this was corrected and she was not eligible to receive the child element of universal credit for the third and fourth child, as she already had two children.

LMN’s case is more complex. LMN had four children with the first partner who was controlling and violent. She entered a relationship with another violent and controlling partner and her children were taken into local authority care. She had a fifth child with that second partner before fleeing the relationship, taking that child with her. She then had a relationship with a third partner. She had a sixth child with that partner who was also violent and controlling. She then fled that relationship and lived with her fifth and sixth children. She was then reunited with one of her older children who moved back into the household from local authority care. When she reported this to the respondent, she received the child element of universal credit only for two children (and not her youngest child) because she had not told the respondent that the youngest child was non-consensually received. When she did inform the respondent that her youngest child was non-consensually conceived, the exception was then applied from that date but nor retrospectively.

Both EFG and LMN brought a claim for judicial review challenging the compatibility of the regulations which granted exceptions to other groups of people responsible for a third, or subsequent, child, but did not grant an exception to them, on three grounds. Only one ground is the subject of this appeal, namely whether the operation of the relevant regulations involved discrimination contrary to Article 14, read with either Article 8 of, or Article 1 of the First Protocol to, the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It is not necessary to address the other grounds of the claim for judicial review.

Collins Rice J (“the judge”) dismissed the claim as she considered that the arrangements, whilst involving differential treatment on grounds of status, were objectively justified. The appellants appeal on three grounds:

1.

The treatment of the appellants by the relevant regulations (regulations 24A-24B of, and Schedule 12 to the Universal Credit Regulations 2013 (“the 2013 Regulations”) is not justified;

2.

The judge erred by abdicating her duty to conduct a proportionality assessment; and

3.

The judge erred by holding that the appellants’ case trespassed into family principles on parental responsibility, and by treating that as a material factor in whether the treatment is justified.

The Welfare Reform Act 2012 (“the 2012 Act”) created a new form of welfare benefit, universal credit, which replaced the previous system of a large number of different welfare benefits. Section 1 of the 2012 Act provides that:

“(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.”

Sections 3 to 6 of the 2012 Act deal with entitlement to universal credit. Sections 7 and 8 deal with the basis and the calculation of an award. This appeal concerns only the child element of an award, namely the amount payable if a person was responsible for children or young persons, as provided for by section 1(3)(b). At the material time, section 10(1A) of the 2012 Act limited the available amount of the child element to the amount for a maximum of two children. The limit was subject to exceptions. Section 10 of the 2012 Act provided, so far as material:

“10 Responsibility for children and young persons

(1)

The calculation of an award of universal credit is to include an amount for each child or qualifying young person for whom a claimant is responsible.

(1A)

But the amount mentioned in subsection (1) is to be available in respect of a maximum of two persons who are either children or qualifying young persons for whom a claimant is responsible.

(2)

Regulations may make provision for the inclusion of an additional amount for each child or qualifying young person for whom a claimant is responsible whois disabled.

(3)

Regulations are to specify, or provide for the calculation of, amounts to be included under subsection (1) or (2).

(4)

Regulations may provide for exceptions to subsection (1) ...”.

The question of whether a claimant was “responsible” for a child is dealt with in regulation 4 of the 2013 Regulations. That provides, so far as material, that:

“(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.”

Regulation 24A provided at the material time that, where a claimant was responsible for more than two children, the child element of universal credit provided for by section 10 of the 2012 Act was to be payable for the first and second child and any other child for whom an exception applied. The exceptions were set out in schedule 12 to the 2013 Regulations. The material provisions at the relevant time provided that:

“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…”

The exceptions, when the child element of universal credit was paid in respect of a third child, were as follows:

There is a complication. As indicated, a parent could only claim for a maximum of two children for which the parent was responsible subject to any exceptions. The question of whether a child was the first or second, or later, child was determined by the child’s date of birth. That is relevant to the exception for non-consensual conception: it is only if the third (or subsequent) child was conceived non-consensually, that the exception applied. If the mother, for example, had two children and claimed universal credit, and she then had a third, non-consensually conceived child, she could also claim the child element of universal credit in respect of that third child. If her first and second child were non-consensually conceived, but a third child was consensually conceived, the mother could only claim for the first and second (non-consensually conceived) children; she could not claim the child element in respect of the third child as that child was the third by date of birth and that child was consensually conceived.

There is an additional complication for those children who were adopted or the subject of non-parental care arrangements (the exceptions in paragraphs 4 and 5 of Schedule 12 to the 2013 Regulations). By virtue of regulation 24B(2A), such children were not included in the two child limit at all. The adoptive parent, or the non-parent carer, was able to claim the child element of universal credit in respect of that child – even if the person had two other children, and irrespective of whether the person had the two children first and then the adoptive or cared for child, or took responsibility for the child who was adopted or the subject of non-parental care arrangements first and then had two children later. The provisions governing non-parental carers, and adoptive parents, were amended following the ruling by Ouseley J. that earlier provisions providing that the exception only applied if the third or subsequent child was adopted or the subject of non-parental caring arrangements were unlawful because they were irrational as a matter of domestic public law: see C v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2018] EWHC 864 (Admin); [2018] 1 WLR 5425.

The material provisions applicable at the material time were found in regulation 24B of the 2013 Regulations which provided that:

“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….”

EFG had two children who, at the material time, had been recognised as having been conceived non-consensually. She had a third and fourth child who was conceived consensually. First, EFG was not entitled to the child element of universal credit for her third (or her fourth) child as they were conceived consensually (albeit that, for a period, the respondent incorrectly paid the child care element for the third child). Secondly, the parent of a child who was adopted or subject to non-parental arrangements would be able to receive the child care element for such a child – even if the non-parental carer had two other children, and irrespective of whether the adopted or cared for child was the first, second or third child for whom the adoptive parent or non-parental carer became responsible. LMN was also unable to receive the child element of universal credit for the youngest of her children because no exception was applied (until she disclosed that that child had been conceived non-consensually). It is that difference in treatment arising out of the operation of the relevant regulations that the appellants say is contrary to Article 14, read with Article 8 or Article 1 of the First Protocol to, the Convention.

Article 14 of the Convention provides that:

“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.”

Article 8(1) of the Convention guarantees the right to respect for family and private life. Interferences with this right are acceptable where they are prescribed by law, seek to achieve a legitimate aim and are necessary in a democratic society: see Article 8(2) of the Convention. Article 1 of the First Protocol to the Convention provides for the peaceful enjoyment of possessions.

In general terms the approach to the question of whether differential treatment is contrary to article 14 involves consideration of four broad issues, albeit that different cases express the issues in different language and some focus on particular issues (or focus on the question of justification). The four issues are:

A different form of discrimination may arise where a public body treats people in the same way but where their situations are materially different. That form of discrimination arose in Thlimmenos v Greece (2001) EHRR 15. There, a person had been convicted for refusing to enlist in the army for national service. He had conscientious religious objections to military service. He was subsequently not appointed to a public post as a chartered accountant because of his criminal conviction. All persons with a criminal conviction were treated the same and would not be appointed to the post. The applicant complained that the rule failed to distinguish between those who had acquired a conviction because of their religious beliefs and others. The European Court found that there had been discrimination contrary to Article 14, read with Article 9, of the Convention noting at paragraph 44 (footnotes omitted) that:

“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.”

The two appellants, LMN and EFG, have been the subject of horrific, violent and abusive behaviour at the hands of their former partners. That is described in the judgment below in the following way. The judge describes LMN and EFG as:

“…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.”

The facts concerning each of the appellants, and the children, are set out in the judgment. I set out those facts in this judgment, to ensure that the extent of the horrific abuse to which LMN and EFG were subjected is understood. The judge recorded the facts at paragraphs 15 to 23 of her judgment where she said this:

“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.”

The appellants each brought a claim for judicial review of what was described as the continuing application of the regulations that exempt certain children from the ‘two-child limit’. The two claims were dealt with together. The material ground of claim was that the regulations contravened Article 14, read with Article 8 or Article 1 of the First Protocol, to the Convention.

The judge dismissed that claim. She pointed out that the primary legislation imposing the limit on the amount payable to that payable in respect of a maximum of two children, subject to exceptions, had been found to be compatible with Article 14 of the Convention by the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223. The judge then turned to the claims that the relevant provisions of the 2013 Regulations involved discrimination contrary to Article 14 of the Convention and dealt with the four questions referred to above.

The judge found that the subject matter of the claim fell within Article 8 and Article 1 of the First Protocol to the Convention. She found that the differential treatment was based on status, namely being a mother of non-consensually conceived children.

She identified the two alleged elements of differential treatment in the following terms (referring to non-consensually conceived children as “NCC children”):

“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.”

She had difficulties in deciding if the claimants and the comparator groups were in a materially analogous position (the third of the four questions referred to at paragraph 17 above). The judge decided to proceed on the basis that they were and to consider whether the Secretary of State had justified the measures. There is a dispute as to whether the judge did carry out the proportionality assessment required when considering if measures are justified.

At paragraph 71 of her judgment, under the heading “Justification”, the judge said:

“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.”

She considered that the relevant regulations pursued legitimate aims and were rationally connected to those aims and that no less intrusive measures were available. There is a section of her judgment headed “Proportionality” where the judge considered what she termed “the overall proportionality balance”. She identified the three features which she considered called for a high level of respect for, and a restrained degree of scrutiny of, the measure, namely:

“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 ” (emphasis in original).

88.

Third, the Regulations operate in the field of social and economic policy, just as the two-child limitation itself does. They deal with some particularly difficult matters of social and economic policy, including matters which could be described as raising “sensitive moral or ethical issues”. They do so not only in the provision they make, but in the provision they do not make. They make special provision where the default of biological parental responsibility has been relinquished or removed (at the interface between non-parental family care and local authority care). They make special provision where biological families have been enlarged beyond two children without any choice about that. They refrain from making special provision in any other case—whether for mothers of NCC children, mothers who are in or have been in coercive, abusive or violent relationships or who have otherwise been subjected to gender specific crime, widowed mothers, mothers in circumstances of family breakdown or unification with other families, mothers of unplanned children, mothers of twins, mothers with religious or moral objection to contraception or termination, or mothers in all imaginable circumstances of disadvantage and adversity other than those specifically addressed. And, of course, they do not assist mothers of NCC children who are not in receipt of UC. These are deliberate policy choices, made and tested in the arena of public and parliamentary opinion. The limitation of the exceptions is part of the definition of the two-child limitation itself. The scheme of the exceptions—both those made and those deliberately not made—is internally logical and reconcilable with, indeed demanded by the logic of, the aims of the two-child limitation.”

At paragraph 95, the judge asked whether the law required the relevant regulations to be amended so that mothers of non-consensually conceived children are able to receive the child element of universal credit. At paragraph 96, the judge made an observation which is the subject of the third ground of appeal saying that this:

“…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.”

At paragraph 99, the judge said this:

“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.”

Finally, at paragraphs 106 to 109, the judge said this:

“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”. I am rightly compelled to distinguish between moral, political or economic arguments about fairness on the one hand and legal arguments about discrimination on the other. My business is solely with the latter. To intervene as the claimants ask me to, I would have to be able to find a legal basis on which a court could properly overturn the judgment that Parliament has endorsed that not excepting mothers of NCC children from the two-child limitation was an appropriate means of achieving the aims of that limitation and the social and economic balance of fairness it strikes.

107.

I have not been able to do so. In my judgment, the question of justification, again, ultimately resolves itself into a question of whether or not the solution we have at present was the right policy decision, whether or not the Regulations amount to “wise legislation”, and which of two competing versions of socio-economic fairness should prevail. Like the two-child limitation itself, this was at the time, and remains, a question of intense political controversy. It cannot be answered by a process of legal reasoning. There are no legal standards by which a court can decide where the balance should be struck between the interests of some children and their parents in receiving support, or more support, from the state, on the one hand, and the interests of the community as a whole in leaving responsibility for the economics of family enlargement with parents, on the other. In my judgment, that must include parents who are mothers of NCC children, not least because the implications of overturning the present policy in their favour would touch on fundamental and sensitive matters about how the law deals more generally with the consequences of non-consensual conception in terms of parental responsibility, which cannot be fully and fairly accommodated within a discrimination challenge of this nature.

108.

At the invitation of the claimants I have looked carefully for, but I have not been able to find, a legal basis for reaching any other conclusion. Two opposing policy arguments about where, in fairness, the balance between the collective and the individual should be struck, are in contention. It is not enough in the end to be able to articulate an argument of fairness, however powerful in its own terms, which would produce the outcome the claimants seek. It has to be an argument a court can recognise as engaging its compulsive powers to intervene on politically controversial welfare policy and force one version of fairness rather than another in the detail of the benefits system, in a manner which retains constitutional respect. That is not the present case. I cannot conclude that the decisions made by government and Parliament, on a proper analysis, were prohibited by law. I cannot conclude the law obliges them to treat UC recipients who are mothers of NCC children in the way they seek. The answer to the question before me, properly analysed, “can only be determined, in a parliamentary democracy, through a political process which can take account of the values and views of all sections of society. Democratically elected institutions are in a far better position than the courts to reflect a collective sense of what is fair and affordable, and of where the balance of fairness lies.”

(f)

Conclusion on Ground 1

109.

I cannot in these circumstances uphold the discrimination claim advanced by Ground 1.”

It is those paragraphs, among others, upon which ground 2 is founded, namely that the judge abdicated responsibility for carrying out the proportionality assessment required in determining whether the Secretary of State had shown that the measures were objectively justified.

The preliminary question that arises is the role of this Court in dealing with this appeal. In particular, is the role of this Court to carry out a fresh assessment of proportionality? Or is its role limited to the traditional role of reviewing the judge’s assessment of proportionality to check whether it was arrived at on the basis of a proper self-direction as to the test to be applied and whether the result arrived at was reasonable in the sense of being within the legitimate parameters of judgment for the judge? That was the issue considered by the Supreme Court in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2026] AC 607, especially at paragraphs 142 to 165 in the judgment of Lord Sales and Lady Rose with whom Lord Reed, Lord Leggatt (on this issue), and Lord Richards agreed.

Ms Monaghan KC, with Mr Royston, for the appellants submit that the Court of Appeal must carry out a fresh assessment of proportionality. Alternatively, they submit that the judge below erred so that, in any event, the Court of Appeal in this case will, having identified what Ms Monaghan submits are errors on the part of the judge, have to decide for itself whether the Secretary of State has demonstrated that the relevant regulations are proportionate and objectively justified. Ms Ward KC, with Mr Vanderman, for the respondent, submits that the proper approach is one of review of the assessment of the court below. She submits that the aims of the legislation providing for the limitation of payment of the child element of universal credit to the amount for a maximum of two people have been considered by the Supreme Court. This case involves an application of that decision to the facts of this case.

I am satisfied that this is a case where the Court of Appeal should carry out the proportionality assessment afresh, and for itself. The two factors, of the six identified at paragraph 162 of Shvidler, which seem most pertinent are these. First, this is a challenge to secondary legislation where the constitutional responsibility of the senior courts is likely to be involved in a more acute way (see paragraph 162(ii) of Shvidler). The question is whether the regulations governing exemptions from the limit on payment of the child element to the amount for a maximum of two children are framed, or operate in a way, which gives rise to differential treatment which is not objectively justified. It is, in the words of paragraph 157 of Shvidler, a challenge to a “general legal principle or a challenge to the application of a legal rule… which covers many cases” and that is a powerful reason for the Court to make its own assessment of proportionality. Further, whilst the compatibility of the two-child limit has been considered by the Supreme Court, the issue of the compatibility of the exceptions to that limit has not been considered before by this Court. The ruling on the issue is likely to have a wide significance, given that this is the first time this specific issue has arisen, which points in favour of this Court carrying out its own proportionality assessment.

Secondly there is a high importance for society and there is a concomitant public interest in it being decided by a senior court (see paragraph 162(vi) of Shvidler). The issue concerns the way in which a particularly vulnerable group within society, women who have suffered extreme forms of domestic and sexual abuse, are treated in terms of access to welfare benefits.

Ms Monaghan for the appellants submitted that the differential treatment of non-parental carers and adoptive parents as compared with mothers of non-consensually conceived children, such as the appellants, was not justified. She submitted that this involved discrimination on a suspect ground, sex, as the treatment affected women, and there no very weighty reasons justifying that discrimination. Further, she submitted that the exceptions were not contained in primary legislation, but in subordinate legislation which was subject to the negative resolution procedure in that Parliament could have voted not to approve the regulations. That did not require a significant degree of respect to be accorded to the regulations.

Ms Monaghan further submitted that it was not justified to treat a woman who has two non-consensually conceived children, and women who have two consensually conceived children in the same way when it comes to a third, consensually-conceived child. A woman with two non-consensually conceived children has never made choices resembling those of a mother with consensually conceived children. A consensually conceived child is the first such child for women, such as EFG, but is the third such child for a mother with two consensually-conceived children.

Ms Ward, for the respondent, submitted that the rationale for the exception for women who have a third (or subsequent) child who is not consensually-conceived, is to protect those who were unable to make a choice about having the third child at the time that that choice came to be made. The differential treatment of non-parental carers and adoptive parents was justified as that exception was concerned to ensure that such people were not discouraged from assuming responsibility for other people’s children by the benefit system. The difference in treatment with mothers who had a third (or subsequent) child was justified as the government had drawn the exceptions to the limitation (which had been found to be justified) narrowly. The only exception to the economic aims pursued by the two child limit was where there had been no choice about conceiving the third (or subsequent) child.

I deal first with the first questions that arise when considering if measures are compatible with Article 14 of the Convention. First, the claim here does fall within the scope of another Convention right, that is Article 8 (the right to respect for private and family life) and, probably, Article 1 of the First Protocol (peaceful enjoyment of possessions), at least so far as adult claimants for universal credit are concerned: see SC at paragraphs 41 to 43. Secondly, I accept that the differential treatment is based on a status which can be described as being the mother of a non-consensually conceived child or children.

Thirdly, I doubt whether the two groups relied on for comparison are in a materially analogous position to the appellants. Non-parental carers and adoptive parents are not the biological parents of the child, and are not responsible for that child as a matter of law. They are assuming or taking responsibility for another person’s child. They are in a different position from the appellants who are the biological parents and who, as a matter of law, have all the rights and responsibilities of a parent of a child: see sections 2 and 3 of the Children Act 1989. The exceptions are, therefore, addressed at two groups of persons – mothers of non-consensually conceived children and adoptive or non-parental carers – who are not in a materially analogous position.

Similarly, I doubt that mothers of non-consensually conceived children who have a consensually-conceived third (or subsequent) child are in an analogous position with mothers of two consensually-conceived children who then have a third (or subsequent) non-consensually conceived child, for the purposes of the exception. The two groups are not in relevantly similar circumstances. The operation of the exception depends on the circumstances as at the time that the third (or subsequent) child is conceived. At that time, the two groups are in a different position: one parent has a choice, one does not. Nevertheless, I will assume that that the appellants are in a materially analogous position with each of the two groups who do benefit from the exception and I will consider whether the exceptions are proportionate and justifiable.

Before turning to the four stage test identified in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, it is helpful to bear in mind the aims underlying the original limitation of the child element of universal credit to an amount payable in respect of a maximum of two children. Those aims were identified, and held to be compatible with the Convention, in SC.

“190.

It is apparent from the background material described in paras 13–20 above that there were two related “mischiefs” or problems which prompted the introduction of the legislation. The first was an excessively high level of public spending on welfare benefits, resulting in a large fiscal deficit. Addressing this was a major priority of the Government's macro-economic policy at the time, and had been a manifesto commitment at the 2015 General Election. Expenditure on tax credits was a particular concern, as it had more than trebled over the previous ten years or so. It was understood that the introduction of the proposed limitation on entitlement to the individual element of child tax credit would result in significant savings: see paras 13–17 above.

191.

The second problem was the fact that persons in receipt of child tax credits were guaranteed a rise in income for every additional child they might choose to have, without limit. That situation was regarded as unfair to persons supporting themselves solely through work, and as an unreasonable burden to impose on the taxpayers who pay for the scheme….”

The issue here is whether the two exceptions which permit (a) non-parental carers and adoptive parents to receive the child element of universal credit for a child for which they become responsible and (b) mothers to receive the child element in respect of a third child where that child is non consensually-conceived when women, such as EFG, who have two non-consensually conceived children, cannot receive the child element in respect of a third or subsequent child who is consensually conceived, is justified.

First, the aim underlying the exception for adoptive and non-parental carers is to avoid discouraging persons from assuming responsibility for children for whom they are not responsible. That aim is consistent with the economic aim underlying the basic two-child limit. Children who were not being cared for by their parents would need to be cared for by the state unless cared for by non-parental carers or adopted. Needless to say, the arrangements for such care and adoption are ultimately concerned with the wellbeing of the child. But if such arrangements are not in place, the state would have to bear the cost of caring for the child. Providing an exception for non-parental carers or adoptive parents will ensure that they are not discouraged from entering into such arrangements by a disincentive built into the welfare system which would otherwise prevent them from obtaining the child element of universal credit if they subsequently have children of their own. That is a legitimate aim.

Secondly, a measure which gives this group an exception is rationally connected to that economic aim. Thirdly, there is no other less intrusive measure that could be adopted to achieve the aim.

Fourthly, I turn to proportionality. In regard to this exception (and the exception for a third, non-consensually conceived child discussed below) I bear in mind the following factors. The arrangements as a whole governing the limitation on payment of the child element are more likely to affect women. Differential treatment on grounds of sex is referred to as a “suspect” ground where very weighty reasons are generally needed to justify differential treatment (see SC para. 158). This is an area of social and economic policy, where the courts should generally be slow to intervene although differential treatment on grounds such as sex nevertheless requires cogent justification (see SC at paragraph 159). The issue is one that has been considered by the executive and appropriate weight needs to be given to the view of the executive where it has considered, and decided, how the balance should be struck when allocating resources.

The exception made for non-parental carers and adoptive parents is proportionate and justifiable. It avoids creating a disincentive for one group of persons from assuming the responsibility of children. It is an exception which is consistent with the aims underlying the legislation which imposed the two-child limit on the payment of the child element of universal credit. The exception is intended to ensure that the economic aim of the primary legislation – to reduce burdens on the public purse – is not inadvertently undermined by providing a disincentive to persons to take on responsibility for children who would, otherwise, become the responsibility of the state. The appellants’ group are simply in a different position. They have had non-consensually conceived children in the past and are responsible for them. They have also added to their family by having an additional, consensually conceived child. The fact that a benefit is conferred on one group – non-parental carers and adoptive parents to avoid the risk of a great cost having to be borne by the state – does not call for the extension of a similar benefit to a different group of persons where neither the economic aims nor (as discussed below) a need for fairness in dealing with mothers who have an additional, but non-consensually conceived, child arises. That constitutes very weighty reasons for making the exception but limiting it to non-parental carers and adoptive parents.

The second group concerns those others who have two children and then have a third (or additional) child where that child was conceived non-consensually. Harsh economic logic might say that the aim of reducing the burden on the public purse to ensure that the welfare system is sustainable should apply in respect of these children. However, it is a legitimate and proportionate choice to recognise that fairness requires that a woman who has given birth to an additional child, but in circumstances where she had no control over the conception, should be exempted in respect of that child from the two child limit on claiming the child element of universal credit. The important fact to consider in that exception, however, is the state of affairs at the time of the conception and birth of the additional child. It is because the women had no choice, and no control, over the conception that an exception is made and they are allowed to receive the child element of universal credit for that child.

The position in relation to women such as EFG is different. When they added to their family, they had a consensually conceived child. There was an element of choice. To grant an exception to them would run counter to the aim of fixing a limit on the number of children in respect of whom the child element of universal credit could be claimed. Extending the exception to them would mean that they were granted the child element payments in circumstances, and for a child, where that was contrary to the underlying policy and in circumstances in which they were in a different position from women who had a non-consensually conceived child. That constitutes very weighty reasons for making the exception but limiting it to mothers who have an additional, non-consensually conceived child. The decision to make an exception for the one group but not to extend that exception to another group is a proportionate means of achieving a legitimate aim.

I would make two further observations. The submission was that the differential treatment in this case was based on a “suspect” ground, namely sex, where very weighty reasons were required to justify the differential treatment. I have assessed proportionality on that basis. It is the case that the underlying two-child limit on claiming the child element of universal credit did affect more women than men (see SC at paragraphs 54 and 188 to 199). That was found to be justified. In the present, case, however, the differential treatment concerns exceptions for certain groups but not for the group of women which includes the appellants. I doubt that the differential impact of allowing an exception for women who have a non-consensually conceived third (or subsequent child) but not for women who have previously had two or more non-consensually conceived children and then have an additional child does in fact, affect women more than men. Rather, it is a differential impact on different groups of women.

An exception is made for non-parental carers and adoptive parents but not for women in the appellants’ position. It does not appear to me that it is possible to infer or assume that, in fact, the giving of the exception to the one group but not the other does have a disproportionate adverse impact on women. In any event, as indicated, I consider that there are very weighty reasons for the differential treatment.

Secondly, Ms Monaghan sought to rely on certain provisions of the United Nations Convention on the Elimination of All Forms of Discrimination against Women. That is an unincorporated treaty and does not itself give rise to rights enforceable in the domestic law of England and Wales: see SC at paragraphs 75 to 79. An international treaty may, in principle, be relevant to the interpretation of the Convention. Ms Monaghan was, however, not able to demonstrate any way in which the provisions of the United Nations Convention on which she relied was relevant to the interpretation of the Convention. Further, in relation to the articles of the United Nations Convention on which Ms Monaghan particularly relied, notably articles 1 and especially 16, it was not apparent that they had any application to the particular problem that this Court is considering.

I would dismiss ground 1. I have carried out a fresh assessment of the proportionality of the relevant measures, notably regulations 24A and 24B of, and schedule 12 to, the 2013 Regulations to determine if they are justified. The measures are, in my judgment proportionate and justified. The arrangements governing the exceptions considered in this judgment are compatible with Article 14, read with both Article 8 of, and, if it applies, Article 1 of the First Protocol to, the Convention.

Grounds 2 and 3 allege that the judge failed to carry out a proportionality assessment and erred by holding that the appellants’ case trespassed into family law principles. As I have carried out a fresh assessment of the proportionality of the relevant provisions, any error on the part of the judge would not be material.

For completeness, however, I would record that I do not consider that the judge did err in the way alleged. She did carry out a proportionality assessment. The references in her judgment to the issues being essentially arguments about fairness or the social or economic merits of the policy, rather than being legal ones, does not when the judgment is read fairly and as a whole, indicate the judge was abdicating her duty to assess the compatibility of the regulations with Article 14. Rather, they were a strand in her reasoning as to why the courts should not conclude that the regulations were disproportionate. The reference to the fact that requiring the regulations to allow mothers who subsequently have non-consensually conceived children to claim the child element of universal credit would touch on the nature and law of parental responsibility was not impermissible. It reflected one facet of the issues that the judge was considering.

I would dismiss grounds 2 and 3 of the appeal.

I would dismiss the appeal. The relevant provisions of the regulations, and their operation, are, in my judgment proportionate and justified. The arrangements governing the exceptions considered in this judgment are compatible with Article 14 of the Convention.

I agree.

I also agree.