The Irish Human Rights and Equality Commission (“the Commission”) has noted the Supreme Court’s ruling today in an important case centered on the constitutionality of section 39 of the Residential Tenancies Act 2004 (“the 2004 Act”) as applied to a child. The Commission had been joined to the case in its amicus curia (‘friend of the court’) function.
Today, the Supreme Court upheld the High Court’s decision and dismissed the appeal. The Supreme Court delivered three written judgments, one a majority judgment and two separate dissenting judgments.
In its majority judgment, delivered by Mr. Justice O’Donnell, Chief Justice, the Supreme Court found that the legislation was not unconstitutional. The Supreme Court accepted that age discrimination can occur when children and adults are treated differently. However, in this case, the Supreme Court considered that the reasons for the difference in treatment was rational and therefore the legislation was lawful and permissible.
Mr. Justice Hogan and Ms. Justice Donnelly both issued separate dissenting judgments. Mr. Justice Hogan considered that the Constitution provides strong protection for the inviolability of the home. As the legislation did not provide for any possibility for the continued tenancy and thereof occupation by the child, his judgment states that this compromised the essence of the constitutional guarantees. Ms. Justice Donnelly considered that the legislation was inconsistent with the constitutional protections of the rights of the child and the equality guarantees.
The case was brought by ZG and EW (a child who brought the case with the assistance of his aunt). The child lived with their mother as a one-parent family, in an apartment rented from an Approved Housing Body, Clúid Housing.
The child’s mother died suddenly in July 2023. As the child was not yet eighteen years old, they were told that they did not come within the list of eligible people who may inherit a tenancy under the 2004 Act. In September 2023, Clúid Housing sought to end the tenancy and the child has lived with their grandparents ever since.
A High Court case was taken, challenging the constitutionality of section 39 of the 2004 Act on the basis that it discriminated against the child, and it was unsuccessful. The High Court decided that the difference in treatment between the child and a person over 18 seeking to inherit a tenancy under section 39 was lawful. The child and their aunt appealed this decision of the High Court to the Supreme Court.
Liam Herrick, Chief Commissioner of the Irish Human Rights and Equality Commission stated:
“These judgments address important issues including equality guarantees, the rights of the child and the inviolability of the dwelling in the Constitution.
We welcome the careful consideration of these important issues in this tragic case. We will now consider it’s ruling in detail.”
Editor’s Note
The judgments of the Supreme Court are available at Judgments | The Courts Service of Ireland
The full written submissions made by the Irish Human Rights and Equality Commission as Amicus Curiae (Friend of the Court) in this case are published at the following link: Submissions of IHREC dated 14 March 2025_Redacted | IHREC - English