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Commission Exercised Amicus Role in the Supreme Court

The Irish Human Rights and Equality Commission (“the Commission”) has welcomed today’s significant Supreme Court judgment which sets out how separated parents exercising joint custody of their children should be treated when applying for social housing assistance under the Housing Act 2009. The Supreme Court today ruled unanimously in the case of Fagan v. Dublin City Council, that Dublin City Council had exceeded its discretion under law in assessing that Mr. Fagan, a separated father of three, was only assessed as being a one-person household and in need of a single bedroom unit, despite the fact that he had three-night per week custody and co-parenting rights to his children. In delivering the judgment Ms. Justice Irvine stated that the process by which the Council assessed parents, and in this case Mr. Fagan, as a one-person household on the basis that his children had already been provided for “constitutes a de facto policy on the part of the Council. Such a policy inevitably prevents any case-by-case assessment where an applicant has joint custody of their children…”. Mr. Fagan argued that, in contrast to many other local authorities, Dublin City Council would not even consider his eligibility for social housing with space for the children, let alone assess their level of need as a family unit. At the time he commenced his case, the children lived with their mother in hotel emergency accommodation. In a further aside, the Supreme Court judgment set out its perspective on the Council’s description of parental rights:
“In much of the Council’s own documentation, parents such as Mr. Fagan are described as “access parents” when in truth, in many instances, they are joint custodians of their children who want to play a significant role in their upbringing and have such an entitlement either a as result of an agreement with the other parent or as a result of a court order. Regrettably, however, if the other parent’s household has been classified as one which includes the children they are demoted, so to speak, to the role of “access parents”. 
Ms. Justice Irvine stated in the ruling:
“Gone are the days when it could be assumed that in the event of parental separation the mother should and would take something close to full responsibility for the upbringing of the children and that the father might enjoy a couple of hours access once or twice a week…”.
In its legal submissions, the Commission argued that the approach taken by Dublin City Council to automatically exclude Mr. Fagan and his children from the definition of ‘household’ prevented them from being considered together for social housing eligibility.  The Commission cited rights under the Constitution (Article 42A) and the European Convention on Human Rights (ECHR Article 8) in relation to family life, parental and children’s rights, and the Council’s obligations as a public body to implement these rights. While the Supreme Court held that was not necessary to engage with these arguments, it concluded “…this judgment is one which would undoubtedly be consistent with the rights, if any, espoused in Article 42A of the Constitution or Article 8 of the ECHR.” Director of the Irish Human Rights and Equality Commission Laurence Bond stated:
“The Commission played a role in this Supreme Court case to focus attention on important human rights and equality provisions supporting families and protecting the rights of children around housing. “Today’s Supreme Court decision is significant as it moves beyond traditional views of the division of parental responsibilities, to recognise joint parental roles and entitlements. "The Court has recognised the importance of allowing children to form lifelong bonds with both parents, regardless of any separation.”
ENDS/ For further information, please contact: Brian Dawson, IHREC Communications Manager, 01 8589601 / 087 0697095 bdawson@ihrec.ie Follow us on twitter @_IHREC

Editor’s Note

The Commission’s full amicus curiae (‘friend of the court’) submissions to the Supreme Court in this case are available at the following link: Fagan V. Dublin City Council - IHREC - Irish Human Rights and Equality Commission

The amicus curiae function of the Irish Human Rights and Equality Commission.

The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (friend of the court) before the Superior Courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person. Section 10 of the Irish Human Rights and Equality Commission Act sets out the functions of the Commission and Section 10(2)(e) provides that the IHREC shall have a function: “to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State. The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.