Supreme Court strikes down exclusion of minors from tenancy succession as unconstitutional under Article 40.1.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[2025] IESC 49

Record No.: S:AP:IE:2024:000109

High Court Record No.: 2023 No. 1278 JR

O’Donnell CJ. Charleton J. Woulfe J. Hogan J. Donnelly J.

Between/

ZG AND EW (A MINOR) SUING BY HIS AUNT AND NEXT FRIEND ZG

Appellants

AND

IRELAND AND THE ATTORNEY GENERAL

Respondents

AND

CLÚID HOUSING ASSOCIATION

Notice Party

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

Amicus Curiae

JUDGMENT of Ms. Justice Donnelly delivered on the 26th day of November 2025

1. Where legislation provides for close family members of a tenant to be permitted to succeed to the tenancy on the death of the tenant, is that legislation constitutionally invalid because a child under 18 years is excluded from taking on the tenancy while a child over 18 years is included? The appellant argued that s. 39 of the Residential Tenancies Act, 2004, as amended (“the 2004 Act”), is constitutionally defective primarily, but not exclusively, under the equality provision of Article 40.1 of the Constitution.

2. The present appeal is brought by EW (“the appellant”) and ZG who is his aunt and next friend. The appellant is currently 17 years old. The appellant lived together with his mother, as a one-parent family, in an apartment rented by his mother from Clúid Housing Association (“Clúid”) pursuant to a Part 4 tenancy. Clúid, the landlord, is a housing association. It is a private company limited by guarantee pursuant to the Companies Acts. It is an approved housing body and receives funding from, inter alia, local authorities to assist it in providing affordable rented housing for people who cannot afford to pay private sector rents or buy their own homes under s. 6 of the Housing (Miscellaneous Provisions) Act, 1992, as amended. It describes itself as a not-for-profit housing charity.

3. In 2023, when the appellant was 14 years old, his mother was killed in tragic circumstances. Section 39 of the 2004 Act, provides for close family members to succeed to a Part 4 tenancy but does not provide for a minor child to have that option. This subsection allows non-minor children, then resident in the property, to succeed to the tenancy. In September 2023, Clúid sought to terminate the tenancy on the basis that there was no person qualified to take over the tenancy of the apartment.

4. The appellants commenced proceedings by way of judicial review and initially sought orders of certiorari against Clúid as a respondent as well as injunctive relief. The relief claimed against Clúid was ultimately abandoned and the constitutional challenge proceeded on affidavit only. From the facts put before the Court, it appears that the appellant now resides with his maternal grandparents. Clúid has allowed the appellant to visit his family home and occasionally spend time there. The appellant’s maternal aunt and next friend was apparently appointed as his legal guardian. She has indicated her willingness to reside in the family home in order to take care of the appellant as she lives and works within walking distance of the apartment, the subject matter of the proceedings. The appellant’s family believe that it is in his best interests that he remains in the family home. Before the High Court, a doctor’s letter was exhibited which stated that the appellant’s deprivation of access to the family home was “damaging”.

5. On 8 November 2023, the High Court (Barr J.) granted the appellant leave to seek judicial review. In a judgment of the High Court on 8 July 2024, Bolger J. refused the relief sought by the appellant on the basis that he had failed to discharge the burden of proof that s. 39 of the 2004 Act was contrary to Article 40.1 of the Constitution or unconstitutional on the basis of any other provision ([2024] IEHC 413).

6. The Irish Human Rights and Equality Commission (“IHREC”) was given liberty to intervene as an amicus curiae by this Court at a case management hearing on 5 February 2025.

Issues

7. This appeal presents three issues for consideration:

a) Whether the appellant was correct to commence these proceedings by way of judicial review as opposed to by way of plenary summons;

b) The extent to which the appellant’s reliance on Article 40.3, Article 40.5 and Article 42A of the Constitution was pursued in the oral hearing of the High Court; and

c) Whether s. 39 of the 2004 Act, as amended, is contrary to Article 40.1 of the Constitution or any other constitutional provision.

The Constitutional Provisions

8. The constitutional provisions at the centre of this appeal are as follows:

a) Article 40.1: “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

b) Article 40.3: “1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

c) Article 40.5: “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

d) Article 42A.1: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”

The Residential Tenancies Act, 2004

9. The Long Title of the 2004 Act records that its purpose, inter alia, is to make provision “in accordance with the exigencies of the common good, for a measure of security of tenure for tenants of certain dwellings”. Another purpose is to make amendments to the law of Landlord and Tenant “in relation to the basic rights and obligations of each of the parties to tenancies of certain dwellings”.

10. The 2004 Act provides for security of tenure through the innovative concept of a “Part 4 tenancy”. Certain types of tenancies do not come under Part 4, but these situations are quite restricted (s. 25). For other tenancies, if a tenant has been in continuous occupation of the dwelling for a period of six months and no valid notice of termination is in existence, the tenancy shall continue in being for an unlimited period (s. 28(1) as amended by the Residential Tenancies (Amendment) Act, 2021). A Part 4 tenancy may only be terminated by the landlord on one or more of the grounds set out in the Table at s. 34 of the Act and in accordance with the procedural requirements of the section.

11. The Act goes further than providing security of tenure simply to the tenant. Although s. 39(1) of the 2004 Act provides that the Part 4 tenancy “shall terminate on the death of the tenant”, s. 39(2) and (3) provide that the tenancy will continue if certain specified adult family members who are resident in the property elect in writing to become the tenant(s). A minor child who is under the age of 18 at the time of the tenant’s death cannot take over the tenancy. Therefore, the Act permits the Part 4 tenancy to continue on the death of the tenant if certain conditions are satisfied.

12. Section 39 provides: “(1) Subject to subsections (2), (4) and (6), a Part 4 tenancy shall terminate on the death of the tenant.

(2) Where the 2 conditions specified in subsection (3) are satisfied—

(a) subsection (1) does not apply, and

(b) the Part 4 tenancy concerned, accordingly, continues in being, subject to the other provisions of this Chapter, for the period for which it would otherwise have continued in being had the tenant concerned not died.

(3) Those conditions are—

(a) the dwelling, at the time of the death of the tenant concerned, was occupied by—

(i) a spouse or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 of the tenant,

(ii) a person who was not a spouse of the tenant but who was the tenant’s cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and lived with the tenant in the dwelling for a period of at least 6 months ending on the date of the tenant’s death,

(iii) a child, stepchild or foster child of the tenant, or a person adopted by the tenant under the Adoption Acts 1952 to 1998, being in each case aged

18 years or more, or

(iv) a parent of the tenant,

and

(b) one or more than one of the foregoing persons elects in writing to become a tenant or tenants of the dwelling. …”

13. A feature of s. 39 is that there is no time limit in which the close family member(s) must elect in writing to become a tenant. In Residential Tenancies (Bloomsbury Professional 2018, [6.139]), Farrell says that from the decision of the Residential Tenancies Tribunal in Dunne (deceased) & Another v Murnin (TR1115-001449, 2 February 2016) “it would seem that this election in writing must be made before any application to the Residential Tenancies Board.” Therefore, recourse to the dispute resolution mechanism under the Act does not count as written notification to the landlord.

Judgment of the High Court [2024] IEHC 413

14. Rejecting the criticism of the State respondents (“the State”), the High Court (Bolger J.) held that the appellants were not prohibited from proceeding by way of judicial review although she noted that plenary proceedings may be a more suitable vehicle by which the constitutionality of legislation could be challenged. Bolger J. observed that the primary argument advanced by the appellant concerned Article 40.1 and that the other constitutional challenges were “deprioritised by the applicant in the course of the hearing.”

15. Bolger J. found that the challenge advanced by the appellant did not concern a constitutionally protected property right under Article 40.3. Article 40.5, which guarantees the inviolability of the dwelling, was also found to be of no assistance to the appellant. Furthermore, the Court stated that the appellant’s reliance on Article 42A was “misplaced”, considering that the provision’s application “is expressly limited to proceedings relating to the safety and welfare of a child or adoption, guardianship, custody or access.”

16. In examining the appellant’s Article 40.1 challenge, the trial judge held that s. 39 does not directly exclude or target children from one-parent families but that the impugned section does have a differential impact on such minor children where there is no adult resident in the property who can become the tenant under s. 39. Thus, s. 39 could be considered, on its face, as indirectly discriminatory on the grounds of family status. However, with reference to Donnelly v Minister for Social Protection [2023] 2 IR 415, [2022] IESC 31 (“Donnelly”), subsequently endorsed in O’Meara v Minister for Social Protection [2024]

1 ILRM 437, [2024] IESC 1 (“O’Meara”), the trial judge noted that the appellant was required to establish more than just unequal treatment: namely that the treatment under s.

39 was premised upon some consideration which was arbitrary, capricious, irrational or constitutionally illegitimate.

17. The trial judge observed that the law treats minor children differently from adults in many ways. The particular treatment of children exists to protect them and to ensure that they are not subject to the responsibilities and freedoms of adulthood. In the event that parents cannot care for their minor children, for whatever reason, the maintenance obligations to the child fall on the State to discharge. The trial judge found that the State will sometimes act paternalistically in carrying out this duty and that the child may legitimately not be afforded full agency over their maintenance or accommodation. How and in what circumstances the State may endeavour to minimise disruption to a homeless and/or recently bereaved minor child is a policy choice for the State and is not a constitutional right of the minor child.

18. The Court distinguished O’Meara from the appellant’s challenge, finding at paragraph [22] that where a single parent dies: “the child’s accommodation needs fall to be provided by their legal guardian, with whatever assistance from the State the guardian may be entitled to … The minor child (or their legal guardian on their behalf) is not entitled … to continue to reside in a Part 4 tenancy rented home …”. The High Court held that the difference in treatment resulting from s. 39 was not arbitrary, capricious or irrational. The provision recognises that minor children have different rights and obligations to adults and are lawfully restricted from accessing the freedoms and responsibilities of adulthood. The care of any child may involve denying them some degree of autonomy. They are entitled to maintenance and protection but are not necessarily entitled to choose the form and provision of same. The appellant’s claim for special treatment was found to be misplaced considering that the State already has arrangements in place to ensure the special treatment and protection of the minor child of a deceased lone parent. The High Court also held that the appellant could not simply seek to assert that “legislating for the constitutional entitlement he asserts to have, and rendering s. 39 inclusive, is a matter for the State, along with all the operational challenges that may be involved.”

19. The High Court also dismissed the appellant’s argument under Article 8 of the European Convention on Human Rights. Those arguments were not pursued by the appellant before this Court.

20. For the above reasons, the High Court refused the appellant’s application.

The Form of Proceedings – Judicial Review or Plenary Proceedings?

21. The determination of this Court published on 29 November 2024 ([2024] IESCDET 146) invited the parties to make submissions “on the question of whether these proceedings should have been commenced by way of plenary summons.”

22. The appellant and IHREC submitted that there is no rigid rule requiring that a constitutional challenge be brought by way of plenary action, a position accepted by the State. Reference was made by all parties to the procedural appeal in Galvin v DPP [2020] IECA 319 (“Galvin”) where the Court of Appeal upheld an order remitting judicial review proceedings for plenary hearing. This Court has recently delivered a judgment in the substantive proceedings in Galvin v DPP [2025] IESC 35, holding that those proceedings had been brought prematurely. Prematurity is not an issue in this appeal and thus the issues raised in the Court of Appeal judgment are more relevant.

23. The appellant also relied on O’Meara which proceeded by way of judicial review. The appellant, noting that O’Malley J. in Donnelly referred to the potential delay that may arise from the plenary route, submitted that he elected for judicial review in the present proceedings on the basis of urgency and procedural efficiency. The appellant submitted that the essential facts in the present case were not disputed.

24. IHREC submitted that having regard to the constitutional right of access to the courts, the Rules of the Superior Courts should not be interpreted as setting out a rigid requirement. Referencing Galvin, IHREC said that the important consideration is whether a court has sufficient evidence to allow it to properly address the constitutional arguments raised and that no such evidential deficiencies were apparent here. IHREC also drew attention to Order 84, Rules 22 and 27 which provide that where an action is commenced by way of judicial review, an action may instead be brought by way of plenary summons or continued by way of plenary hearing.

25. The State submitted that where the primary relief sought concerns a constitutional challenge, a party ought to proceed by way of plenary summons, referring to Riordan v An Taoiseach (No. 2) [1999] 4 IR 343. With reference to Galvin, the State submitted that the evidential basis for the present constitutional claim was unsatisfactorily thin; the underlying facts of this case as regard to the constitutional dimension were rudimentary and evolving. The State emphasised that the proceedings were initiated as an urgent injunction and challenge against the actions of the notice party. Noting that the constitutional challenge was contained within only a single paragraph of the Statement of Grounds, the election by the appellant to pursue only the constitutional challenge was a significant change in the nature of the case. The State also submitted that it was unclear from the evidence that the case was to be made that the appellant’s legal guardian ought to be permitted to succeed to the tenancy. There was no opportunity to explore as to how this would work in practice. The State submitted that the case should have taken place by way of plenary action and that this Court was now disadvantaged by virtue of that.

26. The appellant replied stating that circumstances always change with the passage of time and cases evolve. The appellant also submitted that it was never asserted that he could take possession of the property on his own; his aunt averred on affidavit that she would be willing to live with the appellant in the property.

Discussion

27. At paragraph [49] in Galvin, Ní Raifeartaigh J. outlined the principles which appear from the case law cited by the parties in this case. The judgment of Collins J. in Galvin also emphasised that the “well-established”, “correct” and “normal” procedure was that a constitutional challenge must be taken by way of plenary proceedings. That is the starting point that an applicant seeking judicial review must bear in mind and it must follow that an applicant bears the burden to satisfy the court that judicial review is the appropriate procedure.

28. Collins J. points to the three subrules of Court contained within Order 84 that are potentially relevant when an application is made by way of judicial review rather than by way of plenary summons. The first, Rule 22(1), permits a court to direct that an application for judicial review be made by plenary summons instead of by the usual route by originating notice of motion. The second, Rule 27(5), provides that where the relief sought is a declaration, an injunction or damages and the court considers that the relief sought ought not to be granted on an application for judicial review but might have been granted if brought in a civil action begun by plenary summons, the court may, instead of refusing the application, order that the proceedings “continue as if they had been begun by plenary summons.” The third, Rule 27(7), provides that a court on the application of any party or of its own motion in proceedings in prohibition or in the nature of quo warranto, may direct a plenary hearing and that the proceedings will then be conducted as if they had been originated by plenary summons.

29. Significantly, each of the three Rules gives the opportunity to a court, sua sponte – of its own motion – to direct a plenary hearing or continuation of the proceedings as if begun by plenary summons. It would appear that r. 27(7) could not have been at issue in these proceedings as prohibition was not sought (I leave aside any argument as to whether prohibition in that sense is to be interpreted as including relief seeking an injunction against a lower court). Unlike Galvin however, it is necessary to decide whether r. 27(5) can and should be read as being engaged as and from the first return date of the motion seeking judicial review. In DP v Governor of the Training Unit [2001] 1 IR 492, [2000] IEHC 104, Finnegan J. held that what is now r. 27(5) was applicable at the leave stage. He refused leave to apply for judicial review to challenge the constitutionality of a deportation order and of a statutory provision in that case. In Galvin, Collins J. pointed out that there was nothing in subrule 5 which compelled a conclusion that the provision could not be engaged as and from the first return date of the motion. In my view, the phrase “continue as if they had been begun by plenary summons” indicates that the timing of the decision may be at any point in the proceedings. Such a decision cannot be restricted to the time of the hearing or the conclusion of the hearing of the judicial review; such a restriction would jar with the concept of continuation. Any other interpretation would also impose a significant burden on the parties and the court if such a decision could only be made at the hearing of the judicial review and there is nothing in the wording of the subrule to suggest that such an interpretation is warranted.

30. The appellant relied upon the third principle identified by Ní Raifeartaigh J. in Galvin, as stated by Kearns J. in SM v Ireland [2007] 3 IR 283, [2007] IESC 11, that where there is an underlying administrative or judicial decision being attacked one can ‘tack on’ a challenge to the validity of particular legislation. That principle must be treated with some caution. Where there is a particular reason to detach or decouple the challenge to the legislation then the propriety of hearing the challenge may be lessened; even where there is an underlying challenge to a decision, the precise issue may be premature until the

decision maker has actually made a lawful decision. In any event, there is nothing in the Rules which prevents a court from deciding that the entire judicial review or that the part of it which relates to the constitutional challenge ought to be heard by way of plenary hearing. Even more importantly, where, as here, the challenge to any decision falls away (although we have not been told why, the appellant may have reconsidered the issue of whether Clúid was in fact a public body subject to judicial review), the Court no longer has that challenge on which to ‘tack on’ the constitutional challenge.

31. In its statement of opposition, the State did not object to the hearing of the constitutional challenge against them by way of judicial review instead of by way of plenary summons. They did not bring a motion seeking to have the matter heard by way of plenary hearing. Counsel for the State submitted that it was an evolving situation that only became clear on the morning of the hearing. It is also apparent from the High Court judgment that the State was “critical of the [appellant] for not proceeding by way of plenary proceedings where they said the rights and entitlements of landlords and tenants, and the full housing and care circumstances of the applicant, could have been fully explored in evidence.” While accepting that plenary proceedings may be more suitable, the trial judge, relying on O’Malley J. in Donnelly, held that the appellants were entitled to proceed by way of judicial review.

32. From a close reading of Donnelly, it is readily apparent that O’Malley J. was making an observation at the end of a lengthy judgment in which she rejected the applicants’ challenge on equality grounds. She pointed out the undoubted advantages of proceeding by way of plenary hearing where the availability of certain mechanisms as well as the presenting and testing of evidence is more likely to give the court a greater understanding of the factual context for a claim. Far from being an imprimatur to applicants to take constitutional challenges to the validity of legislation by way of judicial review, her observations are more properly read as a warning of the dangers of doing so.

33. Significantly, O’Malley J. does not set aside, nor does she purport to set aside, the important and oft repeated dicta from the courts at all levels that the normal procedure is to bring such challenges by way of plenary proceedings. Phrased in another way, taking these challenges by way of judicial review is abnormal. If something is abnormal there must be a justification for doing so. Parties – applicants and respondents – have to bear this in mind, as do the courts. It is appropriate in all cases for the High Court to consider, at an early stage, whether the proceedings ought to be remitted for plenary hearing or continued by way of plenary hearing.

34. Where does that leave the present appeal? This Court is faced with an unsatisfactory situation because:

a) There was no pleaded point in the statement of opposition regarding the appropriateness of judicial review proceedings.

b) There was no motion to remit to plenary hearing.

c) There was no cross-appeal on the issue of plenary hearing which appears to have been raised in submissions at the hearing of the application.

d) The High Court has ruled on the substantive issue.

e) This Court has heard that the apartment at issue essentially lies idle pending the determination of these proceedings.

f) This Court has heard full argument.

35. All of the above takes place in a context where the appellant asserted that he is entitled to proceed by way of judicial review having, presumably, taken the view that there was sufficient evidence in support of his claim. The State on the other hand asserted that they had been hampered in responding to the claims, for example by exploring other options of accommodation for the appellant. They said, less convincingly, that the process did not readily lend itself to wider evidence being introduced as to how the State caters for the accommodation needs of minors. The State said that this Court was disadvantaged.

36. On balance, in light of all that is said, I am of the view that this Court should proceed to determine the appeal given the factors referred to above. While a plenary hearing would have been preferable, the evidence is sufficient for this Court to rule as there is no dispute that the minor child is not being permitted to succeed to the tenancy. That is the fundamental fact in these proceedings and the State was prepared in the High Court to proceed on the basis of the evidence before that Court. Moreover, the situation has been reached where the High Court has ruled upon the issue without serious demur from the State and the case has been fully argued in this Court. This situation is unlike Galvin, where prematurity prevented the case from being ready for hearing and required the very particular order made therein of allowing the appeal of the applicant/appellant but remitting the matter to the High Court for an order to refuse the relief sought.

37. I also take the view, respectfully, that the balance in the High Court ought properly to have been struck against hearing this case by way of judicial review. There was no sufficient nexus with this constitutional challenge to the challenge to the decision of Clúid in order to ‘tack it on’ and warrant the challenge being heard by way of judicial review. This became even more apparent by the time the challenge to the administrative decision was abandoned. If the result was going to add expense to the parties, then the Court could have made appropriate orders in that regard – a factor that parties must consider when launching proceedings by way of judicial review. Any inconvenience and waste of court time has to be weighed against the disadvantage to the High Court in undertaking its solemn constitutional jurisdiction under Article 34.3.2° to review the validity of a statute having regard to the provisions of the Constitution when the proceedings are not plenary in nature.

38. One final comment on the nature of the proceedings is necessary. There seems to have been no good reason at all as to why the minor appellant’s aunt was an applicant in the judicial review proceedings. Before this Court, no constitutional right of ZG was said to have been violated by the provisions of s. 39 of the 2004 Act. It is almost impossible to see how it could. She had no interest in the dwelling and could have no interest in its claim now. Her involvement in the case appears to be on the basis that she is the person with whom it is intended that he might reside if he is granted a right to succeed to the tenancy.

All relief claimed by her is therefore refused and the subsequent references to the appellant are to the minor appellant only. What Issues Were Before the High Court?

39. In granting leave to appeal, this Court also asked for clarity in regard to the matters which the trial judge stated were “deprioritised” in the course of the oral hearing. This concerned the claims under Articles 40.3, 40.5 and 42A. The trial judge said as follows of these claims: “Whilst this judgment focuses primarily on Article 40.1, as the applicant did in the course of the hearing, I do, albeit more briefly, address the other constitutional articles and the Convention for the avoidance of any doubt, given the importance of addressing any suggestion that a legislative provision may be legally fragile.”

40. There is no real disagreement between the parties that the claims were not abandoned. The appellant rested on his written submissions (as indeed did the respondent on this issue in the appeal). Such a course of action is not unusual and can often be a demonstration of good advocacy. The problem arises here, said the State, because the appellant sought to criticise the reasoning of the trial judge by way of further arguments that could have been, but were not, put before her. Naturally, no issue arises when reliance is placed on a new

decision delivered in the interregnum – indeed here the Court drew the parties’ attention to the subsequent judgment delivered in AZ, MZ and CZ v The Minister for Justice and Equality [2024] IESC 35 (“AZ”) on which the appellant now relies.

41. Both parties referred to Lough Swilly Shellfish Growers Co-Op Society Ltd v Bradley [2013] 1 IR 227, [2013] IESC 16 where this Court held that there is a spectrum of cases in which a new issue is sought to be argued on appeal. O’Donnell J. (as he then was) noted that it was part of the normal course of a Supreme Court appeal that more elaborate and detailed argument would be advanced than had occurred at the High Court. At one end, the new arguments would necessarily involve entirely new evidence or the argument may have been abandoned in the High Court. In such instances, the grant of leave to argue the new point is not appropriate. At the other end of the spectrum, are cases where a new formulation of a previous argument is presented or where the new argument is closely related to the arguments already made at the High Court.

42. The reality is that there was little between the parties on this issue. In so far as legal arguments are made by the appellant on this appeal, they did not fall outside the permitted parameters. The arguments were not abandoned in the High Court. No new evidence was being relied upon by the appellant. He was therefore entitled to rely on his challenge on the non-equality grounds.

The Constitutional Challenge

43. As well as his primary challenge to s. 39 of the 2004 Act on the basis of Article 40.1, the appellant also relied on Articles 40.3, 40.5 and 42A “as reinforcing and supporting the primary claim”. He also argued that s. 39 is invalid having regard to each of these Articles taken individually. IHREC did not make specific submissions on these Articles given the manner in which the High Court dealt with these rights. IHREC submitted however that the fact that the claim brings ‘into play’ a number of other constitutional rights is highly relevant to the manner in which this Court should assess the claim under Article 40.1 particularly as to the level of scrutiny to be applied. The appellant further submitted that the interplay between Articles 40.1, 40.3, 40.5 and 42A all serve to underscore that the section’s unconstitutionality extends beyond equality on the basis of the broader constitutional obligations of the State. He claimed that the cumulative impact of the deficiencies of s. 39 support his claim of unconstitutionality.

Addressing constitutional challenges

44. There is no particular order in which a court, hearing a challenge to the validity of legislation on different grounds, must address each ground. This is particularly so where there is some overlap of concepts or rights. As O’Donnell J. said in Gilchrist v Sunday Newspapers Ltd [2017] 2 IR 284, [2017] IESC 18: “The Constitution was intended to function harmoniously”. Therefore, when considering the fundamental rights provisions, those provisions must be considered in their context within the Constitution. An example of this is found in the judgment of O’Donnell J., speaking for the Court, in NVH v Minister for Justice and Equality [2018] 1 IR 246, [2017] IESC 35 when he connected the right to work with the dignity and freedom of the individual which is what the Constitution seeks to promote according to the Preamble. Thus, the right to work in the sense of freedom to work, was part of the human personality. Accordingly, the Article 40.1 requirement that individuals as human persons are held equal before the law meant that those aspects of the right could not be withheld absolutely from non-citizens. Of course, in some cases, there will be a reason to consider substantive fundamental rights before the equality provision because the identification of an interference with a right and consequential application of the proportionality test from Heaney v Ireland [1996] 1 IR 580 (“Heaney”) may a) render it unnecessary to make a further finding on the equality matter or b) assist in the resolution of the equality argument.

45. In this appeal there is good reason to consider the equality provision after the other relevant Articles of the Constitution. The appellant, and even more directly IHREC, made the argument that the other Articles should inform the Court’s approach as to how it addresses the equality guarantee. That requires an evaluation of the relevance of those Articles for the validity of the provision.

Article 42A

46. The Thirty-First Amendment of the Constitution (Children) Act, 2012 inserted Article 42A into the Constitution. These proceedings concern Article 42A.1 only. The other subsections of Article 42A refer to specific situations such as the duty on the State when parents fail in their duty towards children, adoption, guardianship, custody and access. Many of the cases that the appellant relied upon in written submissions to support the argument that the interests of the child are “of primary importance”, were cases which did not deal specifically with Article 42A.1. While therefore not directly relevant, they nonetheless contain important dicta which identify the change brought about by the new provisions.

47. O’Donnell J. said in Re JB and KB (minors) [2019] 1 IR 270, [2018] IESC 30 that Article 42A “was introduced as part of an amendment designed to ensure that the Constitution was more clearly child-centred.” Similar comments were made in the decision of Re JJ [2022]

3 IR 1, [2021] IESC 1 where this Court found that Article 42A.1 “could be seen as a constitutional recalibration to provide for a more child-orientated approach to matters of constitutional interpretation.” Reference was also made to The Child and Family Agency v McD and Ors [2024] 2 ILRM 153, [2024] IESC 6 where Hogan J. observed that Article 42A “imposes a specific obligation on the Court to consider the best interests of each child.” Most recently this Court has said in a series of cases dealing with children before the criminal justice system that “Article 42A, although primarily concerned with matters such as child care proceedings and adoptions, can be seen as expressly recognising the status of childhood” (The People (DPP) v CC [2025] IESC 11, The People (DPP) v PB [2025] IESC

12 and DOE v DPP [2025] IESC 17).

48. The import of Article 42A.1 was recognised by this Court in AZ, where Woulfe J. considered the application of Article 42A.1 in the immigration context and held at paragraph [101]: “… Article 42A.1 is of general application so that the rights of an Irish citizen child, including the welfare of the child, require consideration when the Minister is making deportation decisions which may seriously affect the child. It seems to me that the obligation placed on the courts to have regard to Article 42A.1 of the Constitution … is of very wide application and includes application to these type of immigration decisions which may seriously affect children.”

49. With reference to AZ, the appellant submitted that s. 39 contravenes Article 40.1 and the broader constitutional guarantees under Articles 40.3, 40.5 and 42A, which collectively mandate the protection, welfare and dignity of children. According to the appellant, AZ supports his case because the failure of s. 39 to provide for minor children from singleparent families disregards the State’s obligation under Article 42A to ensure that the best interests of the child are taken into consideration. The appellant contended that the jurisprudence illustrates that the courts have taken a child-centric approach. It was submitted that the unique vulnerability of a bereaved minor child makes the underinclusive nature of s. 39 contrary to the very essence of Article 42A. The appellant submitted that in accordance with the reasoning of AZ, s. 39 must not only be assessed with regard to Article

40.1 but also through the broader constitutional framework that protects the rights of children. No mechanism was provided by the State to ensure that there was a consideration of the best interest of the child as required by Article 42A.

50. The State submitted that the distinction made by s. 39 does not engage Article 42A. It was stated that the appellant’s submission on this point failed to identify a coherent basis for the engagement of Article 42A and lacked particularity. The State sought to distinguish AZ and said that reliance on Article 42A was contradictory in drawing on a provision related to the special status of minors to support an argument for equality of treatment. Relying on the primary consideration test would represent a conspicuous extension of the scope of Article 42A, a stricter test than that outlined in Donnelly and would have potentially farreaching implications.

51. The State also distinguished Re JJ, on the grounds that it concerned discretionary decisionmaking, did not consider the impact of Article 42A on impugning legislative provisions and that no equivalent issue arose in the present case as regards State intervention or parental failure. The State also noted the findings of Collins J. in AZ that although the best interests of a child are a primary consideration, many other factors will also be weighed.

52. The case law to which I have referred supports the contention of the appellant that the courts are taking a child-centric approach to issues which concern a child. However, some context is required for that proposition. This Court in Re JJ said that the objective of the amendments brought about by Article 42A was not a single clear-cut reversal of the direction of the law “but rather a more wide-ranging, though subtle, change to the posture of the Constitution in relation to child and family matters.” With specific respect to Article 42A.1, this Court most notably said that the change was one of emphasis rather than substance. The constitutional amendment made explicit what was implicit but “that does not mean that the change was without significance or importance for constitutional interpretation.” In my view, in a case such as this, the importance of Article 42A.1 lies in the shift of emphasis towards recognising children as specific holders of constitutional rights which has a consequential effect on the constitutional interpretation of those rights. Article 42A.1 is not therefore confined to administrative decision-making but can be relevant to the assessment of whether an impugned legislative provision sufficiently respects and vindicates other constitutional rights. That change in emphasis, and the understanding that Article 42A is a constitutional recognition of the status of childhood, is best addressed and will be addressed when considering the constitutional validity of legislative provisions under the Article 40.1 equality guarantee.

Article 40.3

53. Article 40.3 of the Constitution guarantees the protection of personal rights. The appellant submitted that the State’s duty of protection under Article 40.3 “protects not simply the integrity of the human body, but also the integrity of the human mind and personality…” (citing Hogan J. in Kinsella v Governor of Mountjoy Prison [2012] 1 IR 467, [2011] IEHC 235). Relying on Sullivan v Boylan (No. 2) [2013] 1 IR 510, [2013] IEHC 104 where Hogan J. stated that “acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2°”, the appellant submitted that his need to retain his family home is heightened by his suffering in terms of mental health and well-being.

54. The appellant’s contention was that the underinclusive nature of s. 39 fails to vindicate the personal and family rights of children in single-parent families under Article 40.3. The appellant submitted that the State’s failure to provide for such children where their legal guardian is willing to take on the tenancy is contrary to their rights to dignity, stability and a secure family home. The appellant stated that the infringement of Article 40.3 by s. 39 serves as an indicator of its inherent unconstitutional inequality.

55. The State submitted that the appellant’s grounds of challenge on the basis of Article 40.3 are not satisfactorily particularised nor are they proven. The appellant did not enjoy a property right in the dwelling and his submissions afforded little consideration of the rights of the landlord. The State rejected the appellant’s contention that s. 39 operates as a constitutional tort upon him.

56. I find that the appellant’s arguments under Article 40.3 are underdeveloped in law and insufficiently supported in fact. Reliance on hearsay evidence by way of a medical report was not only an inadmissible grounding of a claim of violation of the constitutional right to bodily (and mental) integrity but also, in its content, inadequate. The High Court noted that the doctor’s letter did not “go as far as saying that it was in the [appellant’s] best interests for him or his legal guardian to continue to reside in the property.” In the absence of real engagement with this constitutional provision I cannot find that there has been any interference with it. I am however satisfied with the appellant’s submission, supported by IHREC, that considerations of the nature of other constitutional rights may fit into the overall analysis of the equality claim under Article 40.1.

Article 40.5

57. The appellant submitted that his eviction, having been a lawful occupant, without proper procedural safeguards was unconstitutional because Article 40.5 prevents unjustified or disproportionate interference with the home. Referring to Kelly: The Irish Constitution (5th edn, Bloomsbury Professional 2018, paragraph [7.5.03]), the appellant submitted that Article 40.5 has been interpreted as substantively protecting the dwelling in particular the private enjoyment of the dwelling rather than the procedural requirement that entries be carried out in accordance with law.

58. Primarily however, the appellant asserted that the impact of Article 40.5 compliments and reinforces the other constitutional guarantees. The appellant stated that the application of s. 39 is incompatible with the provisions of the Constitution and the effect of this is to undermine the protections of Article 40.5. The appellant went on to state that the protections set out by this Court in Damache v DPP [2012] 2 IR 266, [2012] IESC 11 (“Damache”) pertaining to Article 40.5 must also be required in the instant case where he is to be permanently deprived of his home.

59. The appellant submitted that Article 40.5 is infringed by s. 39 as children from one-parent families have no mechanism to defend their right to remain in their home. While the application of s. 39 may be lawful in certain instances, it did not follow, according to the appellant, that its application is lawful in all circumstances. Minor children in single-parent families are uniquely vulnerable to eviction as compared to those from two-parent families. The appellant stated that the failure to account for this distinction results in an arbitrary and unequal application of the law. He said that this impermissible differential treatment of children by the law supports his core equality argument.

60. The State referred to Meath County Council v Murray [2018] 1 IR 189, [2017] IESC 25 to say that McKechnie J. offered ‘a more restrained interpretation’ of the significance of Damache in developing the Article 40.5 jurisprudence. In that case, this Court endorsed an incremental approach to the development of the scope of Article 40.5 stating that “the preferable course would be that any widespread expansion from the Article’s traditional sphere of influence should be case driven and individually worked out.” The State said that the narrow textual base of the provision was regarded by this Court as imposing something of a brake on its far-reaching expansion.

61. The State also identified Clare County Council v McDonagh [2022] 2 IR 122, [2022] IESC

2 (“McDonagh”) as an important pronouncement on Article 40.5. The State emphasised the specific facts and circumstances of McDonagh as well as the comments of Hogan J. that the considerations underpinning the judgment “would not apply, for example, in the case of a private landowner …”. Attention was also drawn by the State to Pepper Finance Corporation v Persons Unknown [2022] IECA 170 where in obiter remarks, Whelan J. considered that proportionality did not arise in disputes between private entities. On appeal no view was expressed in this Court by Hogan J. on the extent to which Article 40.5 could be invoked in such cases ([2023] 1 ILRM 381, [2023] IESC 21).

62. The State also referred to the limited temporal nature of occupation rights as the defining feature of a tenancy. They submitted that while ownership is not a prerequisite for the protections of Article 40.5, it is significant that neither the appellant nor his legal guardian have ever had any interest in the property. No individualised proportionality analysis is required as it is the notice party and not the State which seeks to recover the property by operation of law. The State submitted that a minor is not conferred by law with the autonomy as to their choice of residence. The State stated that while the best interests of the child are required to be considered in custody matters, it has never been accepted that this implies a right to a particular residence. If a parent’s interest in a property terminates, for whatever reason, a child has no free-standing claim to continue to occupy that property.

63. In my view, the appellant’s contention for a standalone right under this provision is also underdeveloped. His submissions on this aspect of the case amount to no more than an assertion that his right to respect for his dwelling place has been violated. I have not been persuaded that his simple assertion, in the absence of any legal analysis as to the legal basis for that assertion, is sufficient to support a finding that a law which regulates the private relationships between tenants and landlords amounts to an interference with the dwelling rights of a permitted occupier if it does not also address their situation when the tenancy comes to an end. Even when considered under Article 42A, I do not think that it has been established by this appellant on his particular arguments that the right under Article 40.5 can extend that far. The lawful termination of the tenancy rights or indeed possession rights of a parent or guardian in a private context will always affect a child who lives in the dwelling place. Nothing in what has been cited to us appears to support the contention that Article 40.5 gives to that child a right to a separate consideration of the legality of their occupancy. In that context, the child’s right to reside is dependent upon their parent/guardian. To hold otherwise would be to upend the legal context through which disputes between private parties over residential properties have been enacted. There is no support in the arguments made to this Court by this appellant for that contention. In the circumstances of this case, it is not necessary to assess whether there may be a difference between dwelling rights which are subject to a public body’s decision-making.

64. It is clear however that Article 40.5 is an important constitutional statement as to the importance of the security of the dwelling place within the sphere of constitutionally protected rights. Therefore, in accordance with the appellant’s main contention in these proceedings, which is supported by IHREC, the provisions of Article 40.5 must be considered in addressing the equality provisions.

Article 40.1

Broad overview of arguments

65. According to the appellant, the purpose of s. 39 of the 2004 Act is to ensure continuity and stability of housing for households after a tenant’s death. The exclusion of minors, who are most in need of stability, is inconsistent with that purpose. The lack of alignment between the exclusion of minors and the purpose of stability demonstrates that the exclusion has no rational connection to the legislative purpose and therefore cannot be justified. Section 39 is unconstitutional because it creates an unjustifiable and discriminatory exclusion of minor children – in particular those from one-parent families – from its protection and draws an arbitrary distinction. While minor children in two-parent families can remain in the family home where a surviving parent can continue the tenancy, minor children from one-parent families cannot as there is no adult to take on the tenancy. Articles 40.3, 40.5 and 42A, the appellant argued, “reinforc[e] the broader constitutional failure of s. 39” pursuant to Article 40.1 of the Constitution.

66. IHREC submitted that the other constitutional provisions are relevant to the determination of the equality claim. First, they are relevant to the level of scrutiny that this Court ought to adopt in its application of Article 40.1. Second, they are also relevant to the assessment as to whether the distinction effected by s. 39 is constitutionally permissible or justifiable.

This Court has long recognised that the individual constitutional provisions cannot be interpreted in isolation without regard to the Constitution as a whole (The People (DPP) v O’Shea [1982] IR 384 and Heneghan v Minister for Housing, Planning and Local Government [2022] 1 ILRM 323, [2022] IESC 7 (“Heneghan”)). IHREC said that while the impact of s. 39 is more acute on a one parent family, the primary frailty lies in the discrimination between the minor child and the adult child of the deceased tenant. In IHREC’s submission this distinction was not justified for the purposes of Article 40.1.

67. The State submitted that the appeal rests upon a radical proposition: that treating children differently to adults with respect to property rights violates the Constitution. They submitted that the appellant’s position that his legal guardian could take on the tenancy on his behalf represented an inherent contradiction in his equality argument as it conceded the legitimacy of age-based distinctions.

68. Although there is some role for dialogue between Article 40.1 and other fundamental rights, the State submitted that in circumstances where these constitutional provisions have not been breached, this should not distort the conventional application of the equality guarantee. The State submitted that the essential issue in an equality analysis is the rationality of the legislative differentiation. The State submitted that what the appellant and IHREC contended for was a Heaney style proportionality test. Whether this applies or not depends on either (i) that the legislative distinction is suspect and strict scrutiny is warranted, or (ii) there is some other infringement of constitutional rights. It was submitted that the choice made in s. 39 was entirely rational.

69. According to the State there was no breach of any other constitutional rights which warranted a more exacting proportionality standard. The State further submitted that if it was the position of the appellant or IHREC that other rights need simply to be ‘engaged’ but not ‘infringed’ to support the stricter test this would represent a significant departure from Donnelly. It was submitted that such an approach would undermine legal certainty and upset the appropriate balance as to the limits of judicial supervision of the Oireachtas’s responsibility for policy choices when legislating.

The test under Article 40.1

70. Challenges to legislation by reference to Article 40.1 of the Constitution pose undoubted difficulties of analysis (per O’Donnell J. at paragraph [27] in X v Minister for Social Protection [2021] 3 IR 528, [2019] IESC 82). As was also noted by O’Donnell J., equality before the law is an important pillar of the fundamental rights provisions. It is important that analysis of claims avoid the twin hazards of both oversimplified justification for any legislative differentiation which would insulate almost any provision from challenge on the one hand, and a demanding scrutiny from which no provision could escape on the other. The methodology through which that analysis must take place has been clarified by the two decisions of Donnelly and O’Meara.

71. General propositions concerning equality challenges are set out by O’Malley J. in Donnelly at paragraph [191]:

(i) Article 40.1 provides protection against discrimination that is based on arbitrary, capricious or irrational considerations.

(ii) The burden of proof rests upon the party challenging the constitutionality of a law by reference to Article 40.1.

(iii) In assessing whether or not a plaintiff has discharged that burden, the court will have regard to the presumption of constitutionality.

(iv) The court will also have regard to the constitutional separation of powers, and will in particular accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy.

(v) Where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny. Conversely, where there is no such impact, a lesser level of examination is required.

(vi) The objectives of a legislative measure, and its rationality (or irrationality) and justification (or lack of justification) may in some cases be apparent on its face. Conversely, in other cases it may be necessary to adduce evidence in support of a party’s case. These principles have been reaffirmed in Heneghan, O’Meara and BM and JM v Chief Appeals Officer and Others [2024] IESC 51.

72. At paragraph [192] of Donnelly, O’Malley J. stated that: “[t]he statutory classification must be for a legitimate legislative purpose, and it will not be legitimate if it is arbitrary, capricious or irrational. Further, the classification must be relevant to the legislative purpose, and it will not be relevant if it is incapable of supporting that purpose.” In O’Meara at paragraph [21], O’Donnell CJ. described the question to be asked, by reference to the basic approach in Donnelly, as whether the distinction is “irrational, arbitrary, capricious or not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of.”

73. Donnelly and O’Meara were pure equality claims where the legislature decided to confer a benefit on a class of persons. Those plaintiffs were aggrieved at their exclusion as they had at least some relevant similarity with those who were included. It was acknowledged that the legislature was entitled to make choices and thus distinguish between classes of persons. In doing so, the State could have due regard to differences of physical and moral capacity and of social function. The challenge can only succeed if the legislative exclusion is grounded upon some constitutionally illegitimate consideration and therefore draws an irrational distinction which results in some people being treated as inferior for no justifiable reason. As O’Malley J. indicated in Donnelly, the court will engage in a greater degree of scrutiny where the differentiation involves what may be termed as one or more ‘suspect grounds’.

74. It is of considerable significance that this Court in Donnelly stated that in using the word ‘suspect’, there was no intention to import the jurisprudence concerning that classification in other jurisdictions, “which may have the potential to result in overly rigid differentiations between the applicable standards of review.” It seems to me that it accords with the principles in Donnelly to refer to such situations as ‘categorisations of concern’. Such categorisations of concern may require closer scrutiny, but the level of that scrutiny may vary. As was said in Donnelly and repeated in O’Meara: “It should be borne in mind that context is relevant here, and also that some grounds of discrimination, even within the core category of characteristics of human personality, are more likely to be offensive than others and thus require more intense scrutiny.” Certainly, it should be noted that designating a characteristic as a categorisation of concern does not inevitably lead to a finding of unconstitutional inequality.

75. There was significant dispute between the parties as to whether the nature of the legislative differentiation, being based primarily upon age, constituted a suspect ground or as I have identified, a categorisation of concern. It seems to me that it is appropriate to address the equality claim by looking at the object of the legislation, the comparator, the nature of the legislative distinction and whether this is a categorisation of concern, as well as the link, if any, with other constitutional grounds, and finally, the application of the test.

The object of the legislation

76. There is some difference in emphasis between the appellant and the State on the object of the legislation. According to the appellant and IHREC, the purpose of the impugned scheme is to provide stability of housing. The appellant submitted with reference to Donnelly, that there is no rational connection between the exclusion of minor children in s.

39 and the overall legislative purpose of s. 39 and the Act in general. The State submitted that the appellant and IHREC focused unduly on s. 39 rather than adequately considering the overall balance struck by the legislature as between landlord’s rights and security of tenure for tenants and permitted occupiers.

77. IHREC in submitting that s. 39(2) is intended to extend the security of a Part 4 tenancy to other members of the deceased tenant’s family said that this was a significant qualification to the first subsection where the tenancy terminates on the death of the tenant. This was a recognition by the Oireachtas that the termination of a Part 4 tenancy can have a significant impact on the rights and interests of others who live in the home. IHREC emphasised that the ability to take on the Part 4 tenancy operates as of right so long as the relevant conditions set out in s. 39(3) are fulfilled.

78. IHREC noted that the category of persons set out in s. 39(3)(a) is broad with one notable exception. While s. 39(3)(a)(iii) adopts a broad approach in certain respects by extending the protection to step, foster and adopted children, no provision is made for minor children who are under the age of 18. Just like the qualified individuals such as spouses, cohabitants and adult children, minor children may form part of the family for whom the rental property is their home. Indeed, the termination of tenancy by operation of law upon the death of a parent would have the most severe impact upon the minor child. By extension, they are the member of the family who has the greatest need for the protection of s. 39.

79. The Long Title to the 2004 Act is a helpful start to understanding the purpose of the Act and of s. 39 in particular. According to the Long Title, the Act is to provide, as set out in the first subparagraph (a), “in accordance with the exigencies of the common good, for a measure of security of tenure for tenants of certain dwellings”. None of the other provisions in the Long Title detract from that first declared objective, indeed in many respects they flow from it by providing for amendments to Landlord and Tenant law in relation to the basic rights and obligations of each party to tenancies of certain dwellings, the speedy resolution of disputes, and the registration of certain tenancies. The Act therefore ensures that there is clarity as to rights and provides an alternative method to court proceedings for the resolution of disputes which is to the benefit of both landlords and tenants. The State, citing Donnelly, argued that the Court must assess the totality of the scheme. I accept that is so, but within the totality of the scheme provided in the Act there is nothing that takes away from security of tenure being a primary objective of the Act. It is correct therefore to describe the provision of security of tenure as a primary objective of the Act.

80. Part 4 of the 2004 Act is the primary means through which effect is given to security of tenure for tenants. It does so by limiting the grounds for the termination of a tenancy. Section 39 extends that security of tenure in the event of the death of the tenant to other members of the deceased tenant’s family then in occupation of the house. These are the spouse, civil partner, cohabitant, child, stepchild, foster child, adopted child or parent of the tenant. The child, stepchild, foster child or adopted child must be over 18 years of age. Undoubtedly this is a significant security for family members over the age of 18 years.

81. The State views the Part 4 tenancy protections as a significant constraint on landlords’ property rights and characterised the protection of s. 39(2) as a privilege which operates as an exemption to the general rule that a tenancy terminates upon death. According to the State, this is a special privilege enjoyed by close adult relatives of a tenant whereby they may elect to take on a tenancy, provided that they have been co-habiting immediately prior to the death of the tenant. The State submitted that the distinction between adults and minors is not arbitrary, capricious or irrational on the basis that minors lack full legal capacity with respect to property interests.

82. In my view, s. 39 fits comfortably within the primary objective of the Act, namely that having regard to the exigencies of the common good, tenants would have security of tenure, even if this constrains the exercise of landlords’ property rights. Security of tenure, a phrase which any student of Irish history will immediately recognise, is a vital part of the peaceful enjoyment of a dwelling place with all the possibilities which flow from that. It allows the making of plans for improvements in and around the dwelling which enhance the personal lives of the occupants. It permits the development of relationships within the community which enhance both the occupants’ lives but also the life of the community through increased engagement. Where children are involved, arrangements can be made for school placements and activities in local sports and social clubs which benefit both the child’s development and development of society in general. Where there may be elderly parents or other family members with care needs, it allows a network of carers, informal or formal, to be built up over time thereby enhancing quality of life.

83. Human development occurs within society; a point made by the Preamble to the Constitution where the common good, the dignity and freedom of the individual and the attainment of true social order are interwoven. Thus, the purpose of the 2004 Act, in linking security of tenure and the common good, fits seamlessly within the constitutional values of this State. Furthermore, in so far as s. 39 extends that security of tenure to the family members of the tenant living in the house, that also fits within our constitutional values where the rights of individual members of a family and in particular the rights of the child, are guaranteed by the Constitution whether under Article 40.3 (see O’Donnell CJ. at paragraph [113] in O’Meara) or Article 42A. In so far as the Constitution also singles out the dwelling as a place commanding particular protection even in the absence of a defined property right, it can be said that the importance of the dwelling place to an individual is at least given constitutional recognition. This is a significant statement of values even if the specific protection does not extend to protection in private law relationships.

Nature of the classification and the level of scrutiny

84. The classification to be applied to s. 39 is raised under two headings: (i) the fact that the rights of children under the age of 18 years are involved and (ii) the fact that the minor child belonged to, and still belongs to, a non-marital family. The appellant’s focus was not just on the comparator being an adult child but also on the comparator being a member of a two-parent (or marital) family.

85. IHREC identified the distinction effected by s. 39(3)(a)(iii) as forming the core of the constitutional challenge in the present appeal. That provision allows for succession only in instances where the deceased tenant’s child is over 18. On its face this is a distinction based on age or on the status of the individual as a minor child. IHREC submitted that the appropriate comparator in the present case is with a young adult child of a deceased tenant. Had the appellant been over the age of 18 at the time of his mother’s death, he would have been able to take on the tenancy. IHREC drew attention to the fact that a young adult does not enjoy any rights under Article 42A. If a young adult has the benefit of s. 39 but an older minor child does not and yet the older child has the additional constitutional protections under Article 42A, IHREC submitted that this must cast significant doubt on the constitutionality of the impugned provision under Article 40.1.

86. The State submitted that there were difficulties with the comparator in the present case as the appellant and IHREC focused on different comparators. In my view however, it is clear that under both headings the central differentiation is that of age; the child under the age of

18 years can be compared with the child over the age of 18 years. That is the correct comparator and was one that the State addressed in its response.

87. The claim by the appellant and IHREC that age is a ground that warrants ‘close scrutiny’ was rejected by the State. The State submitted that differentiation between adults and minors as to the vesting of legal rights is a routine feature in almost all modern legal systems and they note that the Equality Acts do not apply in the same way to persons under the age of 18 as they do to adults. The State also pointed to differential age treatment in relation to voting, serving on a jury, sexual relationships and marriage, claiming unemployment benefits, and the purchase of vapes, cigarettes and alcohol. It was said that the State’s obligation to accommodate children who are homeless under the Childcare Act, 1991 reflects the distinct status of childhood. They also relied upon the fact that the common law long recognised age as a necessary threshold for contractual capacity.

88. The appellant noted that in Donnelly, O’Malley J. stated that where discrimination “particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny.” The appellant submitted that vulnerable children are such a group and to deny the most vulnerable members of any household continuity of tenure in their family home, facilitated through their legal guardian, contradicts the legislative purpose of s. 39 to provide housing stability.

89. The appellant observed that it is difficult to reconcile the finding in O’Meara that the Constitution recognised the rights of children irrespective of the status of their parents, with the restriction of the s. 39 protection to those currently specified therein. The complete exclusion of minor children from single-parent families from the protection of s. 39 was, the appellant submitted, the very essence of discrimination. The appellant submitted that it is notable that legislation does not draw a distinction between marital and non-marital cohabitants. The appellant emphasised that an adult cohabitant who has resided with the deceased for a mere six months may take over the tenancy, but the minor appellant who lived with his mother may not. In the appellant’s submission, the deprivation of the child’s family home is irrational in circumstances where the child’s legal guardian is able to take on the tenancy. Unnecessary hardship is introduced by a law that should mitigate such instability. There was no legitimate purpose to the legislative framework and it was said to be arbitrary, capricious or irrational.

90. The appellant sought to align his situation with the reasoning of this Court in O’Meara. The appellant drew attention to the impact in both cases of the loss of a parent, which he says is particularly acute in the present case as the child is in a single-parent family. The appellant made reference to paragraph [32] where O’Donnell CJ. stated that: “In the light of the essential equality of children under the Constitution vis-à-vis their parents, and the rights which they all have to look to their parents for support … and the loss which they all suffer on the death of a parent, the stark differential treatment in the 2005 Act requires particular justification.” (Emphasis added in submissions).

91. Referring to the Housing Acts, 1996-2021, IHREC stated that the same restrictions on minors provided for by s. 39 of the 2004 Act may not apply to tenancies in dwellings let by housing authorities. I agree however with the submission of the State that no evidence was placed before the High Court (or this Court) that minors are succeeding to local authority housing. The State also argued that even if this were so, the difference in capacity remains and the same balance of interests in relation to the private sector are not engaged.

92. As IHREC submitted, an important consideration affecting the level of scrutiny is the constitutional separation of powers. IHREC submitted, and I agree, that the present case does not involve a challenge to a law that deals with a matter of social, fiscal or moral policy which would warrant a heightened level of deference to the Oireachtas. Clearly there is no fiscal issue in this legislation. The legislation occurs in the sphere of the regulation of private residential tenancies and the finer details of how that is to be regulated, such policy choices are not of the type of social or moral judgment call that requires a particular deference to the legislature over and above the presumption of constitutionality that all legislation attracts. I also note that where a differentiation is based upon a categorisation of concern, closer scrutiny ought to be applied even in the areas of tax and welfare (see Donnelly at paragraph [198]).

93. The second consideration is whether the legislative exclusion is based on a matter that is said to be intrinsic to the human sense of self or whether it particularly affects members of a group as referenced by the appellant (see paragraph [88]). O’Malley J. stated in Donnelly that context is relevant here and that discrimination based on certain characteristics is more likely to be offensive and thus, require greater scrutiny. It was noted by this Court in O’Meara that the analysis should not become “mechanical or formulaic.”

94. Again, I agree with IHREC when they observed that there is no definitive guide as to which characteristics should attract greater or lesser scrutiny. IHREC submitted that differing views on the status of age have been expressed by this Court citing O’Donnell CJ. in O’Meara and Collins J. in Mallon v Minister for Justice & Ors [2024] IESC 20 (“Mallon”). On the other hand, the State submitted that it is contrary to the authority of this Court to say that age-based discrimination warrants heightened scrutiny with reference to Mallon.

95. This appeal raises the issue of age directly and specifically in the context of the new provisions of Article 42A.1 with respect to children. In In Re The Employment Equality Bill, 1996 [1997] 2 IR 321, [1997] IESC 6 this Court held that, in its view, discrimination on the grounds of age fell “into a different constitutional category from distinction on grounds such as sex or race”. Although at this point I am addressing whether ‘age’ may be a categorisation of concern, it is important to emphasise that this Court in In Re The Employment Equality Bill, 1996, also said that ‘the aged’ and ‘the young’ are entitled as human beings to protection against laws which discriminate against them, unless the differentiation is related to a legitimate objective and is not arbitrary or irrational. It is necessary however to analyse more deeply the issue of age. Undoubtedly age is more fluid than a ground such as race, but it is something that a person cannot change at a particular moment in time and, in that sense, it comes, as O’Donnell CJ. indicated in O’Meara, within the principles set out by O’Malley J. in Donnelly. As O’Donnell CJ. said in O’Meara when discussing marital status: “It is not an immutable characteristic linked to the essence of human personality, such as gender, race, ethnicity, or age”. I agree that age is intrinsic to a person and is immutable at any given time. Furthermore, the amendment to the Constitution by the insertion of Article 42A cannot be ignored when considering the age ground in respect of children; it is a provision which deals directly with the applicability of rights to those who are not of an age to be considered adults.

96. It is of significance therefore that In Re The Employment Equality Bill, 1996 was decided prior to the amendment of the Constitution by Article 42A and O’Meara was decided after the amendment. Important also is that O’Malley J. in The People (DPP) v PB, having drawn attention to the fact that the guarantees in Articles 38.1 and 40.1 apply to children as well as adults, stated that “Article 42A, although primarily concerned with matters such as child care proceedings and adoptions, can be seen as expressly recognising the status of childhood.”

97. The State submitted that Article 40.1 expressly allows for the enactment of legislation which has due regard to differences of capacity and thus legislative distinctions based on age would be consistent with it. The State cited Simons J. in MG v Director of Oberstown Children Detention Centre [2019] IEHC 275 which concerned different procedural treatment with respect to measures for the maintenance of order between child detainees and adult detainees. However, deference does not lead to impunity; Simons J. stated that while there will be deference shown to the legislature’s policy choices, this does not mean the legislature is at large.

98. Importantly, the fact that justification is claimed on the basis of a difference in capacity ought not to obscure the fact that the difference in capacity can involve a ground deserving of close scrutiny. In those circumstances, it is necessary to engage in the close scrutiny first and assess the differentiation on that basis. The differentiation based upon capacity may be justifiable after a close scrutiny analysis. I consider that the State’s argument overly relies on children having different capacities to adults to the detriment of addressing the prior consideration of whether close scrutiny ought to apply to that differentiation.

99. Moreover, to accept as the most significant part in an equality analysis that there is a difference in capacity, would be a profound twisting of the accepted approach to the equality analysis that the Constitution demands. I do not think that the State’s arguments were intended to move away from such an analysis but the effect of accepting their arguments would do so. As Walsh J. said in de Búrca v Attorney General [1976] IR 38, Article 40.1 “imports the Aristotelian concept that justice demands that we treat equals equally and unequals unequally.” At its most simple, accepting that an adult child has different capacity to an underage child is only a factor (have due regard to) in the equality analysis. Their unequal situations may require a difference in treatment between them (e.g. provision for a legal guardian to make the tenancy succession decision) to ensure that equal justice applies to both situations. This points towards, rather than away from, addressing the level of scrutiny applicable to the classification first prior to seeking to justify the distinction by reference to difference in capacity.

100. Furthermore, there can be no doubt but that any difference in treatment must be ‘relevant’ to the difference in capacity i.e. the age classification. Some differences, such as the specific educational and emotional needs of the child compared to an adult could, as in MG v Director of Oberstown Children Detention Centre, justify the difference. Other differences, according to Simons J., may not readily justify such a difference, for example the quantity (as distinct from the quality) of a sentence of detention. Simons J. also opined that the legislature was constrained by the requirement to respect other constitutional rights, positing that it might not be acceptable to deny children a right to trial by jury. Indeed, in my view, it may be that on some occasions treating children differently from adults may be constitutionally required. As O’Malley J. said in The People (DPP) v PB “[t]here are several reasons why the law should extend particular protection to children rather than simply treating them as holders of rights, similar to but narrower in scope than those of adults. The weakness and vulnerability of children means that they require protection, such that, for example, the State must in some circumstances intervene in the authority of the family unit in order to protect the interests of a child.”

101. As I see the position, those cases cited to the Court where distinctions were made on the basis of the age of the child, were situations where prima facie the distinction imposed was to benefit the child. For example, in Landers v Attorney General [1975] 109 ILTR 1 the relevant section of the Prevention of Cruelty to Children Act, 1904 was obviously designed to protect children from being exploited or exposed through singing for profit at licensed premises or being present on those premises at certain times. Another example is B (A Minor) v Director of Oberstown Children Detention Centre [2023] 2 IR 191, [2020] IESC

18 where this Court at paragraph [72] noted that in the circumstances of the detention of children in the criminal justice system there was undoubtedly a constitutional imperative to protect children. Legislative provisions, presumed constitutional, also involve this type of distinction where the purpose is clearly protective of the child. Examples include age restrictions on the sale of alcohol and tobacco, age restrictions on driving and age restrictions on joining the Defence Forces.

102. Moreover, age, particularly in the teenage years and in the senior years, gives rise to vulnerability. Donnelly proposes close scrutiny where the discrimination complained of particularly affects “members of a group vulnerable to prejudice and stereotyping”. I see that principle as directed towards the vulnerability of those who belong to that group rather than one that requires clear findings of prejudice or stereotyping before the vulnerability of the members of the group will require close scrutiny. I note that O’Malley J. in Donnelly at paragraph [197] said that: “The reason that grounds concerning those intrinsic aspects of human personality are considered ‘suspect’ is that a differentiation based on such grounds may in fact be the result of either irrational prejudices or groundless assumptions. In my view, the obligation of the court under Article 40.1 includes ensuring that groundless assumptions or prejudices have no role in determining the legal rights of the individual.” (Emphasis added). The words that I have italicised demonstrate that vulnerability itself is a key determinative in assessing whether closer scrutiny is required.

103. At the very least prejudice (as distinct from stereotyping) and vulnerability are often so intertwined that it would become mechanical and formulaic to seek to find a bright line between the end of one and the beginning of another. I acknowledge that in O’Meara, when finding that marital status was not a ground which attracted particular scrutiny, O’Donnell CJ. said it was not “necessarily the subject of prejudice, or and nowadays, stereotyping.” This dictum, in my opinion, is to be read as saying that one parent families were not nowadays a group whose members were particularly vulnerable.

104. Age is different to marital status and not merely due to age being intrinsic to the sense of self and immutable at a given moment in time. The human condition incorporates particular vulnerability at its extremes; Shakespeare’s description of the Seven Ages of Man in As You Like It is of life bookended by highly vulnerable stages. Article 42A is a recognition that childhood and adulthood are not the same. In recognising the status of childhood, the Constitution compels greater attention to it precisely because it is a status that is vulnerable. What does that mean for distinctions based upon that lack of capacity? The State said that Article 40.1 has a “baked in” recognition of the lack of capacity of minor children and permits distinctions based upon that lack of capacity. Is that explanation, in the words of the State, “as banal as it is rational”? It is not. As pointed out above, that is an oversimplification of what Article 40.1 requires and permits. The vulnerability of children may lead to a lack of capacity, but that lack of capacity cannot and does not give the State unlimited power to make distinctions. On the contrary, depending on context, that vulnerability requires particularly close scrutiny.

105. The legislation at issue here is possibly unique in that it expressly draws a distinction between how it will treat children under the age of 18 years and children over the age of

18 years. Both classes of persons qualify by being the offspring of a deceased tenant and by being resident in the premises at the time of the death of their parent. Yet only the child who is over the age of 18 years will be entitled to any benefit from the legislation even though the child under 18 has suffered (in many cases perhaps with greater trauma) the same loss of the parent. Both children over 18 and children under 18 have the potential to lose their home in the absence of the protection the legislation confers. The express inclusion of Article 42A requires the courts to take the rights of children, qua children, seriously. In my view, under the amended Constitution, it is no longer tenable to say that legislation which expressly excludes children under the age of 18 from the benefits it provides to persons over the age of 18 years based upon their status as children ought not to be subject to some kind of heightened judicial scrutiny. To hold otherwise would, in my view, ignore at worst or diminish at best, the specific constitutional recognition of the status of childhood.

106. The majority judgment delivered by the Chief Justice criticises this analysis on a number of grounds. While the analysis speaks for itself, it is appropriate to address a central feature of the objection to the effect that a focus on vulnerability will lead to other provisions which adopt age classifications also being rendered open to challenge. In the first place it seems to me that a focus on the vulnerability of children is warranted because children are the only category of persons who have their imprescriptible and inalienable rights specifically mentioned in the Constitution.

That reference is, I believe, self-evidently a recognition of their vulnerability to their legal protections otherwise being overlooked. Moreover, in my focus on their vulnerability, I do not mean to imply that children are not a group which never suffer from stereotyping nor prejudice. Children are stereotyped and subject to prejudice in many situations. For example, teenagers may face all sorts of prejudice including that based on the nature of the clothing they wear or the fact that they often congregate in groups. Most important of all, however, is that the close scrutiny that I propose ought to be adopted here is based on a particular categorisation that gave benefits to children over 18 years but denied them to those under 18 years.

That, I consider, is consistent with the decision in Donnelly where the use of ‘suspect’ (or the categorisation of concern) was not intended to incorporate the jurisprudence concerning that classification in other jurisdictions which may have the potential to result in overly rigid differentiations between the applicable standards of review. A classification based on age may require such close scrutiny in one situation and not in another. When the particular categorisation is found to require closer scrutiny, the court must still have regard to the presumption of constitutionality.

However, the court must be wary of distinctions which may be based upon groundless assumptions or prejudices, as such distinctions cannot be permitted to determine the legal rights (or lack of rights) of individuals (see Donnelly at paragraph [197]). Where the categorisation is made because of a particular vulnerability which has been constitutionally recognised (childhood) the court must also be wary of distinctions which do not address those vulnerabilities in any way but on the contrary provide benefits for adults by virtue of being children who are now over the age of 18 years.

The application of the test

107. The State’s primary argument was that it is entirely rational for the legislation to distinguish between those children who are under 18 from those who are over 18 because of the difference in capacity. Undoubtedly the State can and does distinguish those under

18 from those over 18 in many areas. Examples are voting, jury service, application of the Equal Status Acts (treating a person who has not attained the age of 18 less favourably or more favourably than another, whatever that person’s age shall not be regarded as discrimination on the age ground), joining the Defence Forces, places of detention under the Children Act, 2001 as amended, care orders and more. On the other hand, there are many areas where a different age is set. Examples are the Employment Equality Act, (“the age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school” – generally 16 years – although employers are entitled to set a minimum age, not exceeding 18 years, for recruitment to a post), varying ages of capacity in the context of criminal offending (in general a child under 12 shall not be charged with an offence but a child aged 10 or 11 may be charged with murder, manslaughter, rape, rape under s. 4 of aggravated sexual assault), consent to medical treatment (age 16), driving (varying ages from 16 upwards depending on vehicle) and, varying ages under the age of 18 to consent to various forms of sexual activity.

108. It is now generally recognised that in welfare related matters, it is appropriate to hear the voice of the child (e.g. s. 32 of the Guardianship of Infants Act, 1964 as amended by s. 63 of the Children and Family Relationships Act, 2015). That is well recognised as part of EU law and more generally under international law on the rights of the child. Ireland has ratified the UN Convention on the Rights of the Child (“UNCRC”) which not only states that the best interests of the child must be a primary consideration in all actions concerning children (Article 3) but that the child’s views must be considered and taken into account in all matters affecting him or her (Article 12). In its General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, the Committee on the Rights of Child said that the implementation of rights should take account of children’s development and their evolving capacities and that approaches adopted to ensure the realisation of the rights of adolescents differ significantly from those adopted for younger children. The UNCRC is not part of the domestic law of the State. I mention it only for the purpose of establishing that it is generally accepted in this jurisdiction as well as internationally that children’s capacities are not ignored because they are under the age of

18. Instead, by providing for different age limits in different situations and by having a requirement to hear the voice of the child (in certain situations), there is express legal recognition that a child’s capacity evolves over time and that there is no hermetic seal between a person over the age of 18 years and one under the age of 18 years.

109. Therefore, in circumstances where close scrutiny is required, it is an insufficient justification for the State to say that it was entitled to fix the capacity to succeed to a deceased parent’s tenancy at 18 years because children have different capacities to adults. Something further would be required. The State did point to something more; namely, that at common law age has long been recognised as a necessary threshold for contractual capacity. The State submitted that minors do not enjoy full contractual capacity; only contracts for necessaries will be binding on a minor, thus the entitlement of any landlord to enforce a tenancy against a minor is uncertain. The State also said that the guardianship and welfare provisions where the State will ultimately step in where no one else can provide for the child is an important part of the rational basis for making the distinction.

110. IHREC advanced the argument that, as a matter of Irish law, there is no absolute bar to a minor becoming a party to a residential tenancy agreement although they accept that there are limitations on the contractual capacity of minors. However, with reference to McDermott and McDermott’s Contract Law, IHREC stated that at common law it was recognised that in upholding contracts for necessaries “a minor has to eat, dress and have somewhere to live” (IHREC’s emphasis) (2nd edn, Bloomsbury Professional 2017, [18.07]). IHREC also highlighted the Law Reform Commission Report on Minor’s Contracts which stated as follows: “Where a contract made by a minor involves the acquisition of an interest in property … Until he avoids the contract, he is bound by the obligations under it.” (LRC 15—1985, p. 20). IHREC submitted that a minor child can be bound by a tenancy agreement and the ensuing obligation to pay rent. Even where a contract is voidable, the child would be liable for the time already spent in the dwelling.

111. In response, the State submitted that IHREC’s arguments only serve to reinforce the proposition that contracting with a minor is fundamentally different from contracting with an adult. The problem for advancing that as a sufficient rationale for the distinction affected by s. 39 is that it highlights that no provision whatsoever has been made to cater for children

– of any age less than 18 years – who may find themselves bereaved. The common law recognised capacity to contract for necessaries and the law recognises many different ages of capacity, yet when it came to children who have lost their parent/parents and thus their home, the State only took action to address the situation for children over 18 years of age and failed to take any action for children under the age of 18 years who are by definition more vulnerable. Is that failure based on arbitrary, capricious or irrational considerations? Where on the face of the legislation itself, no consideration at all appears to have been given to exploring ways in which the different capacities of vulnerable children may be respected, the omission smacks of arbitrariness. I think that there is some benefit in turning to how other family members who may lack capacity will be treated.

112. Under s. 39 there is no specific provision made for the surviving qualifying relative who lacks capacity to enter into a contract. In that situation a decision-making representative pursuant to the Assisted Decision-Making (Capacity) Act, 2015 would, depending on the extent of the decision-making order made by a court, be entitled to enter into the relevant contract on their behalf. In that situation it can be said that an individual who is a qualifying adult (and adult child) who lacks capacity is catered for by s. 39, but the child under the age of 18 years, who may well have (legal) capacity to enter into a contract for necessaries and (factual) capacity to enter into the tenancy, cannot under any circumstances do so. Indeed, the child who turns 18 the day after their tenant parent’s death is denied that entitlement whereas any adult will have such time until the landlord moves against them (assuming the correctness of the decision in Dunne (deceased) & Another v Murnin) to take over the tenancy.

113. The State highlighted that the Act governs the private law regulation of relationships and submitted that the legislative distinction drawn by s. 39 is not arbitrary, capricious or irrational where the Act must balance landlords’ property rights and where minors lack full legal capacity with respect to property interests. This focus on landlords’ property rights is unconvincing as a rational justification for the clear difference in treatment between a child who is over the age of 18 years and one who is under the age of 18 years. A landlord’s right to access their property, as distinct from their right to financial recompense for renting their property, has already been interfered with by the Oireachtas in the case of the former (and in relation to other qualified occupants). In those other circumstances, the landlord has no entitlement to return of the physical property. Their property rights are protected however by the requirement for the new tenant to succeed to the tenancy on the same terms and conditions. From the landlord’s perspective, the important feature of this interference lies not so much in the identity of the tenant but that the Act requires the successor to the tenancy to fulfil the terms and conditions of the tenancy. If they are not fulfilled the landlord has all the rights provided in the remainder of the 2004 Act. In terms of knowledge of the tenant, it can be said that a child of 14 years of age in occupation of the family home for many years is far more likely to be known to the landlord than a child over the age of

18 years who has just moved in with their parent, having never lived in the house until shortly before the death of the tenant parent. Similarly, a relative in the ascending line might just have moved in and will obtain rights to succeed to the tenancy whereas a minor child has none. Where the State has already provided for the rights of the adult child in occupation, there is a constitutional imperative that the vulnerable minor child in occupation must be accorded equal rights to succeed to the tenancy.

114. The State has criticised the appellant for desiring a system in which a guardian of the minor child may be granted the right to succeed to the tenancy and further, has questioned what their rights would be. An applicant, who can demonstrate that there has been underinclusiveness in providing for a benefit to such an extent that it violates the guarantee of equality as a human person under Article 40.1, is not required to rewrite the legislation. Having said that, I do not consider that the appellant’s real case was ever that his legal guardian could obtain a right, constitutional or otherwise to the tenancy, and in any event that is not part of this appeal. Only the child in occupation at the time of the death of their parent could be entitled to an equal right to succeed to tenancy. Whether that right would be facilitated by a child, perhaps over a certain age, being recognised as having capacity to enter into such a tenancy agreement, or by way of permitting a legal guardian to enter into such a tenancy on behalf of the minor (where the legal guardian would be responsible for the fulfilment of the conditions, including payment of rent), or otherwise is a matter ultimately for the legislature to decide. That could be by way of a gradated system of capacity for a child and/or provision for a legal guardian and/or trustee over the child’s inheritance, through a court application, if necessary, to continue the tenancy on the same terms and conditions. In so far as the State argued that the landlord’s rights must be respected, the State will be able to legislate so as to bind the child and/or guardian/trustee to the terms and conditions of the tenancy. Naturally, if these are not met the landlord may terminate the tenancy and take action in respect of any arrears of rent and breaches of covenant.

115. What the State cannot do is to make no effort to address the situation of children under the age of 18 who are at risk of losing their dwelling place simply because they are not children who are over the age of 18 years. The People, through the Thirty-First Amendment of the Constitution (Children) Act, 2012, demanded more for our children. A close scrutiny of legislation that confers benefits on children over the age of 18 years but excludes those under the age of 18 years is one such requirement.

116. It is not a rational justification for the unequal treatment between minor and non-minor children to say that “a one-size fits all” mechanism cannot ever apply to the children under the age of 18 because of their lack of capacity. Their unequal status, stemming from their vulnerability and lack of capacity, is the starting point of the scrutiny rather than the end point justifying the distinction. It is arbitrary to approach this otherwise and not in accordance with the jurisprudence of this Court.

117. Applying close scrutiny, it is clear that the absence of an extension of the s. 39 protection for securing tenancy for children under the age of 18 on the death of their sole tenant parent is, in the context of this particular legislation, arbitrary as it lacks a sound basis. It is not in accordance with a primary objective of the legislation which is to provide security of tenure.

It is not rationally related to the protection of landlords’ property rights as they have already been interfered with. Further, distinguishing between a minor child and an adult child is, in the context of this legislation, “impermissibly wide and indiscriminate” to adopt the words used in Cox v Ireland [1992] 2 IR 503 (albeit that the phrase was used in that case in the context of a failure to protect the constitutional rights of the citizen). It cannot be said to be in the interests of the common good for those children, and those children only, to be excluded. Minor children are a vulnerable group and those in a one-parent family who lose that parent are particularly vulnerable. To make no provision whatsoever for the possibility that such a minor child might continue to live in security in the home in which they had been raised is to ignore the importance the Constitution places on the security of the dwelling place. For all the reasons I have set out, the distinction made by s. 39 is not reasonably capable, when objectively viewed even in the light of difference in capacity, of supporting the categorisation grounded purely on the basis that one child is a minor and the other is an adult; this distinction failed to take into account the constitutional recognition of childhood, the need to respect the vulnerability of childhood and the inherent differences in capacity of children of different ages. In the context of Article 40.1 and Article 42A.1, the distinction made between minor children and adult children in occupation at the time of their parent’s death to succeed to the tenancy is arbitrary and irrational. The legislation is therefore unconstitutional.

Remedy

118. The challenge here is to the under-inclusiveness of the legislation. I have found that legislation to be inconsistent with the Constitution in so far as the provision it made for children to succeed to a parent’s tenancy did not extend to the situation of the appellant who was a minor child at the time of the death of that parent. There was little or no argument about the remedy that might apply if the appellant was correct in his assertion.

119. In O’Meara, when faced with a similar situation of under-inclusiveness, this Court made a declaration that the statutory provision at issue was inconsistent with the Constitution in so far as it did not extend to the plaintiff as the father of the other plaintiffs. It was recognised that this was not a complete solution as it would require a legislative amendment to positively provide for the benefit in their case. A similar situation applies here. It is noted that the appellant claimed damages in his pleadings, but this was not, it appears, pursued in his submissions where the focus was on declarations of inconsistency.

120. I would therefore make a declaration that s. 39 of the 2004 Act is inconsistent with the Constitution insofar as it does not extend to EW, a child under the age of 18 years. Any further remedy at this time is a matter for the Oireachtas.

Conclusion

121. For the reasons set out in this judgment, I conclude that s. 39 of the Residential Tenancies Act, 2004 is contrary to Article 40.1 of the Constitution.

122. On the preliminary issue of the form of these proceedings, I find that while the balance in the High Court ought to have been struck in favour of holding a plenary hearing, due to the specific circumstances of the present appeal and the fact that there was ultimately a sufficient level of evidence before this Court (see paras [34]-[37]), the fact that these proceedings were conducted by way of judicial review was not a bar to making a determination on the substantive matter. In the ordinary course, constitutional challenges should be taken by way of plenary action. If an applicant seeks to advance their case by way of judicial review, the burden rests on them to satisfy the court that this is the appropriate procedure in the circumstances of the proceedings. It is important for the High Court to consider, from an early point, whether proceedings should be advanced by way of plenary action or judicial review.

123. This appeal was argued on the basis that s. 39 was invalid not only under Article 40.1 but also under Articles 40.3, 40.5 and 42A. An argument was raised as to the extent to which these other constitutional provisions were advanced or abandoned in the High Court. On this point, I conclude that the reality was that there was little between the parties and that the appellant was entitled on appeal to rely on the non-equality provisions. On the substance of these constitutional grounds, the appellant failed to properly engage with Articles 40.3 and 40.5. His arguments were underdeveloped and insufficiently supported in law and in fact. In such circumstances, this Court could not make a finding of invalidity under those particular constitutional provisions. Nonetheless, I agree with the contention of the appellant and IHREC that both provisions should form part of the equality analysis.

124. Article 42A.1 is a constitutional recognition of the status of childhood and refers to the “natural and imprescriptible rights of all children”. It shifts the emphasis towards recognising children as specific holders of constitutional rights. I find that the authorities support the proposition that the courts have increasingly been taking a child-centric approach to issues which concern children. Article 42A.1 is relevant to the assessment of whether an impugned legislative provision, such as s. 39, sufficiently respects and vindicates the constitutional guarantee of equality.

125. The primary issue in this appeal was the question of whether s. 39 is contrary to Article

40.1. It is by now well-established that equality challenges should be considered by reference to the general propositions set out by O’Malley J. in Donnelly and the important comments of O’Donnell CJ. in O’Meara. In considering the appellant’s challenge, I identify the provision of security of tenure as a primary objective of the 2004 Act. Section

39 fits neatly within this objective by extending the protection of security of tenure to qualifying members of the tenant’s family in the event of the death of the tenant. The linking of security of tenure and the common good in the Act fits seamlessly within the values of the Constitution, in particular the rights of individual members of a family (Article 40.3), the rights of the child (Article 42A) and the importance of the dwelling place (Article 40.5).

126. The appropriate comparator in this appeal is an adult child. In light of Article 42A.1, the nature of age as an immutable characteristic and the unique vulnerability of minor children, I find that s. 39 of the 2004 Act must be subject to a close level of judicial scrutiny. There is no definitive guide as to which characteristics should attract greater or lesser judicial scrutiny where distinctions have been made. While age is more fluid than other grounds, it is intrinsic to a person’s sense of self and cannot be changed by an individual at a particular point in time. I further note the importance of Article 42A in determining that close scrutiny was required in the assessment of s. 39. The current legislation makes a unique distinction between children under the age of 18 years and those over the age of 18 years, yet only the latter child will be entitled to any benefit from the legislation where both are the offspring of a deceased parent. This is so despite the special protection afforded to the rights of the child under Article 42A.1.

127. In response to the argument of the State that Article 40.1 allows for the enactment of legislation which has due regard to differences of capacity and to make distinctions based on age, I find that any such differentiation may only be justifiable after a close scrutiny analysis has been conducted. To hold otherwise, would be to conduct the accepted approach to the equality analysis in reverse. Further, any difference in treatment must be ‘relevant’ to the difference in capacity effected by age. I acknowledge that the vulnerability of children may require them to be treated differently from adults in certain circumstances. However, where such distinctions have been drawn in other areas, the differentiation has been to the benefit of the child. A lack of capacity due to vulnerability cannot and does not attribute unlimited power to the State to make distinctions. Rather, vulnerability based on age is a factor which weighs in favour of a heightened level of judicial scrutiny.

128. Article 42A requires that the rights of children be taken seriously. In my view, it is no longer tenable to say that legislation which expressly excludes minor children from the benefits it provides to persons over the age of 18 years due to their status as children ought not to be subject to some kind of heightened judicial scrutiny.

129. Applying this close scrutiny analysis, I hold that where no consideration at all appears to have been given to exploring ways in which the different capacities of vulnerable children may be provided for in s. 39, the omission smacks of arbitrariness. I make the observation that while a qualifying adult child who lacks capacity (for whatever reason) is catered for by s. 39, the child under the age of 18 years who may well have (legal) capacity to enter into a contract for necessaries and (factual) capacity to enter into the tenancy, cannot do so under any circumstances.

130. I find that the focus on landlords’ property rights by the State is unconvincing as a rational justification where landlords’ rights have already been interfered with by the Oireachtas in enacting s. 39. Where the State has already provided for the rights of the adult child, there is a constitutional imperative that the vulnerable minor child must be accorded equal rights to succeed to the tenancy.

131. As noted above, any remedy is a matter for the Oireachtas. An applicant who can demonstrate that there has been an unconstitutional under-inclusiveness in providing for a legislative benefit is not required to rewrite the legislation. The State is not permitted to make no effort to address the situation of minor children simply by reference to the fact that they are under the age of 18. Article 42A.1 requires more for our children.

132. I conclude that the exclusion of minor children from the s. 39 protection is arbitrary and irrational. It is not in accordance with a primary objective of the legislation which is to provide in accordance with the exigencies of the common good, for a measure of security for tenants. Minor children are a vulnerable group and those in a one-parent family who lose that parent are particularly vulnerable. Section 39 provides that certain qualifying adults may succeed to the tenancy upon the death of the tenant while minor children may not. In light of the Thirty-First Amendment to the Constitution which recognises and protects the rights of the child, I find this provision of the 2004 Act to be inconsistent with Article 40.1 of the Constitution.