SCHEDULES

F1SCHEDULE 12Availability of the child element where maximum exceeded - exceptions

Annotations:
Amendments (Textual)

Non-consensual conception5

1

An exception applies where—

a

the claimant (“C”) is A's parent; and

b

the Department determines that—

i

A is likely to have been conceived as a result of sexual intercourse to which C did not agree by choice, or did not have the freedom and capacity to agree by choice; and

ii

C is not living at the same address as the other party to that intercourse (“B”).

2

The circumstances in which C is to be treated as not having the freedom or capacity to agree by choice to the sexual intercourse are to include (but are not limited to) circumstances in which, at around the time A was conceived—

a

B was personally connected to C;

b

B was repeatedly or continuously engaging in controlling behaviour or coercive behaviour towards C; and

c

that behaviour had a serious effect on C.

3

The Department may make the determination in sub-paragraph (1)(b)(i) only if—

a

C provides evidence from an approved person which demonstrates that—

i

C had contact with that approved person or another approved person; and

ii

C's circumstances are consistent with those of a person to whom sub-paragraphs (1)(a) and (1)(b)(i) apply; or

b

there has been—

i

a conviction for—

aa

an offence of rape under Article 5 of the Sexual Offences (Northern Ireland) Order 2008 ; or

bb

an offence under the law of a country outside Northern Ireland that the Department considers to be analogous to the offence mentioned in sub-paragraph (aa) above; or

ii

an award under the Northern Ireland Criminal Injuries Compensation Scheme in respect of a relevant criminal injury sustained by C,

where it appears likely to the Department that the offence was committed, or the criminal injury was caused, by B and resulted in the conception of A or diminished C's freedom or capacity to agree by choice to the sexual intercourse which resulted in that conception.

4

The Department may make the determination in sub-paragraph (1)(b)(ii) where only the available evidence is confirmation by C that that sub-paragraph applies.

5

For the purposes of sub-paragraph (2)(a), B was personally connected to C if, at or around the time A was conceived—

a

they were in an intimate personal relationship with each other; or

b

they were living together and—

i

were members of the same family; or

ii

had previously been in an intimate personal relationship with each other.

6

For the purposes of sub-paragraph (2)(c), B's behaviour had a serious effect on C if—

a

it caused C to fear, on at least two occasions, that the violence would be used against C; or

b

it caused C serious alarm or distress which had a substantial adverse effect on C's day-to-day activities.

7

For the purposes of sub-paragraph (5)(b)(i), B and C were members of the same family if, at or around the time A was conceived—

a

they were, or had been, married to each other;

b

they were, or had been, civil partners of each other;

c

they were relatives (within the meaning given by Article 2(2) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 );

d

they had agreed to marry each other, whether or not the agreement had been terminated;

e

they had entered into a civil partnership agreement (within the meaning given by section 197(3) of the Civil Partnership Act 2004), whether or not the agreement had been terminated;

f

they were both parents of the same child; or

g

they had, or had had, parental responsibility (within the meaning given in regulation 5(2)) for the same child.

8

In this paragraph—

  • “approved person” means a person of a description specified on a list approved by the Department for the purposes of sub-paragraph (3)(a) and acting in their capacity as such;

  • “coercive behaviour” has the meaning given in regulation 96(5);

  • “controlling behaviour” has the meaning given in regulation 96(5);

  • “Northern Ireland Criminal Injuries Compensation Scheme” means the Northern Ireland Criminal Injuries Compensation Scheme under the Criminal Injuries Compensation (Northern Ireland) Order 2002; and

  • “relevant criminal injury” means—

    1. a

      a sexual offence (including a pregnancy sustained as a direct result of being the victim of a sexual offence);

    2. b

      physical abuse of an adult; or

    3. c

      mental illness,

    as described in the tariff of injuries in the Northern Ireland Criminal Injuries Compensation Scheme.