G and Another v Ireland and Another

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice O'Donnell,Ms. Justice Donnelly,Mr. Justice Gerard Hogan
• Judgment Date: 26 November 2025
• Neutral Citation: [2025] IESC 49
• Docket Number: S:AP:IE:2024:000109

Between/

ZG and EW (A Minor Suing by his Aunt and Next Friend ZG)

Applicants/Appellants

and

Ireland and The Attorney General

Respondents

and

Clúid Housing Association

Notice Party

Irish Human Rights & Equality Commission

Amicus Curiae

[2025] IESC 49

O'Donnell C.J.

Charleton J.

Woulfe J.

Hogan J.

Donnelly J.

S:AP:IE:2024:000109

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Tenancies – Constitutionality – Residential Tenancies Act 2004 s. 39 – Appellants seeking a declaration that s. 39 of the Residential Tenancies Act 2004 was repugnant to the Constitution – Whether the law was in breach of the Constitution

Facts: The death of the mother of the second appellant terminated her statutory tenancy pursuant to the provisions of s. 39(1) of the Residential Tenancies Act 2004 and while s. 39 does permit an adult child (or parent or spouse/partner) then living in the rental property to succeed to the statutory tenancy, that statutory entitlement is limited to children who are over 18. The central question in the proceedings was whether the law, by permitting children over 18 and who lived in the premises to succeed to the statutory tenancy without extending the same or similar entitlement to children under 18 was in breach of the Constitution (principally Article 40.1). It was argued that s. 39 of the 2004 Act was repugnant to Article 40.1 on the basis that it was alleged to make an impermissible differentiation on the grounds of parental marital status, or of age. It was agreed that this was the principal ground of challenge, although reliance was also placed on Article 42A on the rights of children, and Article 40.5 protecting the inviolability of the dwelling home. The core issue in the case had been adjudicated upon by the High Court, a determination made, and leave had been granted to appeal to the Supreme Court on the point.

Held by O'Donnell CJ that the law, by permitting children over 18 and who lived in the premises to succeed to the statutory tenancy without extending the same or similar entitlement to children under 18 was not in breach of the Constitution because: (1) the test for unconstitutional inequality on the basis of age, and in particular, in respect of a distinction between adults and children, is whether the law bears a rational relation to the objective of the legislation; and (2) a distinction between adults and minors is a rational one which is commonplace in the law, in the field of tenancies, and in the Constitution itself.

O'Donnell CJ dismissed the appeal.

Appeal dismissed.

Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 26th day of November, 2025.

1 . The background circumstances of this case demand sympathy at a human level for the young boy whose life has been so cruelly altered by the loss of his mother in tragic circumstances. If this case involved simply a discretionary decision as to what provision might be made for a single case it might be easier. But a constitutional challenge such as that involved in this case involves a consideration of law of general application, in this case the law of landlord and tenant, and by reference to principles that may have application outside even that broad and important field.

2 . The particular issue of law arising in this case is that the death of this young boy's mother terminated her statutory tenancy pursuant to the provisions of section 39 (1) of the Residential Tenancies Act 2004 (as amended) and while section 39 does permit an adult child (or parent or spouse/partner) then living in the rental property to succeed to the statutory tenancy, that statutory entitlement is limited to children who are over 18. The central question in these proceedings is not, therefore, specific to this young boy or his circumstances. It is instead whether the law, by permitting children over 18 and who lived in the premises to succeed to the statutory tenancy without extending the same or similar entitlement to children under 18 is in breach of the Constitution (and principally Article 40.1). In brief, I conclude that it is not, because (1) the test for unconstitutional inequality on the basis of age, and in particular, in respect of a distinction between adults and children, is whether the law bears a rational relation to the objective of the legislation; (2) a distinction between adults and minors is a rational one which is commonplace in the law, in the field of tenancies, and in the Constitution itself.

3 . “ 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.” These are the words of Article 40.1 of Bunreacht na hÉireann and they recognise the important balance in any constitutional guarantee of equality before the law: “ But laws may classify. And ‘the very idea of classification is that of inequality’” 1. The guarantee must not interfere with those classifications which are permissible, and yet must outlaw those which offend against the guarantee of equality as human persons.

4 . The words of Article 40.1 are the first words in the section of the Constitution headed “ Fundamental Rights”. However, unlike many of the other rights and freedoms contained in that section, Article 40.1 had no precursor in the Irish Free State Constitution of 1922. An equality guarantee is important and significant in its own right, but it was also consistent with the republican and egalitarian tone of the 1937 Constitution. It can be seen as a bridge linking the individual rights protected by the Fundamental Rights section of the Constitution with the democratic structures established by the preceding articles and underpinning the liberal democracy established in Ireland in 1922 and consolidated in 1937.

5 . Despite its location in the Constitution and potential significance, Article 40.1 has had a chequered history in constitutional jurisprudence. Arguments by reference to Article 40.1 have been regularly invoked, and for a significant period, just as regularly rejected. Even in a

period of active constitutional litigation of the 1960s and 70s, where a plaintiff's claim succeeded and a provision in legislation was struck down, it was often on grounds that it offended an unenumerated right protected by Article 40.3 of the Constitution, and a companion claim under Article 40.1 tended to fail. In other cases, the interpretation given to the phrase “ as human persons” in cases such as Quinn's Supermarket v AG [1972] IR 1 and Murtagh Properties v Cleary [1972] IR 330 as excluding lawful trading or other activities had the effect of limiting significantly the scope of the clause. However, in recent years the jurisprudence has developed through a number of cases such as Murphy v Ireland [2014] IESC 19, [2014] 1 IR 198, NHV v Minister for Justice and Equality [2017] IESC 35, [2018] 1 IR 246, and most comprehensively in the judgment of O'Malley J. for this Court in Donnelly v The Minister for Social Protection & Ors. [2022] IESC 31, [2023] 2 IR 415 (“ Donnelly”)

6 . That judgment discussed the jurisprudence in some detail and at paragraph 191 set out a number of principles as follows:-

• “(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.”

7 . In addition, O'Malley J. rejected the contention that a proportionality test should apply. This, she considered, was inconsistent with the nature of the right being guaranteed. Furthermore, O'Malley J. emphasised the legislature is entitled to make policy choices and must be entitled to distinguish between classes of persons. A challenge could only succeed if the legislative exclusion was grounded upon some constitutionally illegitimate consideration and drew an irrational distinction resulting in some people being treated as inferior for no justifiable reason. Importantly, she observed at paragraph 195—

“The Constitution does not permit the court to determine that the plaintiff should be included simply because a more inclusive policy, assimilating more people sharing some relevant characteristic into the class, would be ‘fairer’.”

This observation is particularly pertinent in this case. It might be said that at some level it would be ‘fairer’ to the family of the deceased tenant to find some way to let them retain the benefit of a tenancy on very favourable terms and allowing the minor applicant continue to live there, but it is difficult to say that outcome is demanded by the Constitution.

8 . In referring to what may be termed “suspect” grounds of differentiation, O'Malley J. emphasised that she did not intend to import the jurisprudence concerning that...