Children’s Equality, Tenancy Succession and Close Scrutiny of Age-Based Classifications

Commentary on ZG and EW (A Minor) v Ireland and the Attorney General, [2025] IESC 49 (Donnelly J)

1. Introduction

This judgment of Donnelly J in the Supreme Court of Ireland concerns a novel and deeply sensitive question: whether housing legislation that allows adult family members to succeed to a tenancy on the tenant’s death is unconstitutional because it excludes minor children (<18) from that protection. The specific provision in issue is s. 39 of the Residential Tenancies Act 2004 (“the 2004 Act”), which governs succession to so‑called “Part 4” tenancies – the scheme of security of tenure that underpins modern residential tenancy law.

The appellant, EW, was 17 at the time of the appeal, and had lived all his life with his mother in a Clúid Housing Association apartment. When his mother – a lone parent – was killed in 2023, the tenancy terminated by operation of s. 39(1). Section 39(2)–(3) allows certain co‑resident adult family members (spouse, cohabitant, adult child, parent, etc.) to elect in writing to become the new tenant, but it contains no mechanism for a minor child in occupation to succeed. On that basis Clúid sought to terminate the tenancy.

EW, suing by his aunt and next friend, challenged the constitutionality of s. 39, primarily under the equality guarantee in Article 40.1 of the Constitution, and also by reference to Articles 40.3 (personal rights), 40.5 (inviolability of the dwelling) and 42A (children’s rights). The Irish Human Rights and Equality Commission (IHREC) intervened as amicus curiae.

The High Court (Bolger J) rejected the challenge. On appeal, Donnelly J would have held s. 39 unconstitutional as an arbitrary and irrational exclusion of minor children in occupation, offending Article 40.1. She anchors this finding in a refined equality methodology drawn from Donnelly v Minister for Social Protection and O’Meara v Minister for Social Protection, and gives significant interpretive weight to Article 42A.1 (the natural and imprescriptible rights of children).

Important additional strands of the judgment include:

A reaffirmation that constitutional challenges should normally proceed by plenary action, with judicial review as an “abnormal” route that must be justified.
A clarification of how “deprioritised” constitutional arguments in the High Court can legitimately be revived on appeal.
A careful explanation of why Articles 40.3 and 40.5 were not independently breached on the facts, but still inform the equality analysis.
A substantive re‑characterisation of age-based classifications affecting children as requiring close judicial scrutiny, especially where legislation confers a benefit on adults but excludes minors in otherwise identical circumstances.

It is apparent from paragraph 106 that a majority judgment by the Chief Justice criticises Donnelly J’s analysis, so this is best understood as a powerful minority opinion rather than the holding of the Court. Nonetheless, it contains substantial doctrinal development and is likely to be influential in future litigation.

2. Factual and Procedural Background

2.1 Facts

EW lived with his mother in a Clúid apartment under a Part 4 tenancy.
Clúid is an approved housing body and private company limited by guarantee, funded inter alia by local authorities to provide affordable rented housing.
In 2023, when EW was 14, his mother was tragically killed.
Because EW was under 18, he could not qualify as a successor tenant under s. 39(3)(a)(iii).
Clúid served a notice of termination on the basis that no eligible successor tenant existed.
EW moved to live with his maternal grandparents but maintained occasional access to the former family home. A doctor’s letter described deprivation of access as “damaging”.
His aunt ZG was appointed legal guardian and expressed willingness to move into the apartment to care for EW.

2.2 High Court Proceedings

EW and his aunt initially sought judicial review against Clúid (including injunctive relief), plus a constitutional challenge to s. 39 against the State. The relief against Clúid was ultimately abandoned; the constitutional challenge proceeded on affidavit alone. The High Court:

Allowed judicial review to proceed, while observing that plenary proceedings may have been more appropriate.
Held that Articles 40.3, 40.5 and 42A did not assist the appellant in the manner argued.
Accepted that s. 39 has a differential impact on minor children of lone parents and may be indirectly discriminatory on grounds of family status, but, applying Donnelly, held that the distinction was not arbitrary, capricious, irrational or constitutionally illegitimate.
Dismissed an additional Article 8 ECHR argument (not pursued on appeal).

2.3 Appeal and Issues Before the Supreme Court

The Supreme Court granted leave to appeal and identified three principal issues:

Whether judicial review was an appropriate form for these proceedings, or whether they should have been commenced by plenary summons.
The extent to which the claims under Articles 40.3, 40.5 and 42A had been abandoned or “deprioritised” in the High Court, and whether they could be pursued on appeal.
Substantively, whether s. 39 of the 2004 Act is contrary to Article 40.1 (equality before the law) or any other constitutional provision (Articles 40.3, 40.5, 42A).

3. Summary of Donnelly J’s Judgment

3.1 Form of Proceedings – Judicial Review vs Plenary Action

Donnelly J reviews Order 84 of the Rules of the Superior Courts and the Court of Appeal’s procedural decision in Galvin v DPP. She reiterates the longstanding position that:

The “normal” and “correct” procedure for a constitutional challenge to legislation is a plenary action.
Judicial review is an “abnormal” route for such challenges and requires justification.

While critical of the High Court’s decision to proceed by judicial review in this instance, she concludes that:

The State did not plead or formally move to have the matter remitted to plenary hearing.
The High Court had already ruled on the substantive issue and the Supreme Court had heard full argument.
The essential facts relevant to the constitutional question (i.e. the exclusion of minors from succession) were not in dispute.
The apartment lay effectively idle pending determination, adding urgency.

On balance, she decides the Supreme Court should determine the constitutional question notwithstanding the procedural imperfections, but emphasises that in future the High Court should actively consider early remittal to plenary where legislation is challenged.

3.2 Scope of Constitutional Issues on Appeal

Although the High Court noted that the appellant had “deprioritised” his non‑equality claims (Articles 40.3, 40.5, 42A), the Supreme Court holds:

The claims were not abandoned; the appellant simply chose to rely on written submissions.
Under Lough Swilly Shellfish Growers Co‑Op v Bradley, more elaborate argument on appeal is permissible where it is essentially a re‑formulation of issues already before the High Court.
No new evidence was offered; there was therefore no procedural unfairness in re‑arguing these provisions.

3.3 Articles 40.3 and 40.5: No Independent Breach, but Relevant to Equality

Article 40.3 (personal rights): The argument that s. 39 violated EW’s bodily and mental integrity was under‑developed and factually unsupported (resting largely on an inadmissible hearsay medical letter). No independent breach was established.
Article 40.5 (inviolability of the dwelling): The Article protects the dwelling as a constitutional value but, on the arguments made, does not confer on a child a freestanding right to remain in a dwelling when the parent/guardian’s contractual right lawfully ends in a private law context.

However, both provisions are recognised as important contextual markers of constitutional values – particularly the importance of the home – and are said to inform the Article 40.1 equality analysis.

3.4 Article 42A.1: Children’s Rights as an Interpretive Lens

Donnelly J surveys the post‑amendment jurisprudence (e.g. Re JB and KB, Re JJ, CFA v McD, AZ v Minister for Justice, and recent criminal cases involving children), concluding that:

Article 42A.1 is of general application and is not confined to child‑care, adoption or custody proceedings.
It represents a “recalibration” of the constitutional posture towards children: a more child‑centred Constitution.
Although often invoked in discretionary administrative decision‑making, Article 42A.1 is also relevant to assessing whether legislation sufficiently respects and vindicates children’s rights.

Consequently, Article 42A.1 should influence the intensity of review under Article 40.1 when legislation differentiates between adults and children.

3.5 Article 40.1: Equality Challenge to s. 39 RTA 2004

This is the core of the judgment. Donnelly J:

States the modern Article 40.1 test as refined in Donnelly and O’Meara:
- Legislation may differentiate, but not on an arbitrary, capricious or irrational basis.
- The challenger bears the burden of proof, and enjoys only a rebuttable presumption of constitutionality.
- The Court must show deference where legislation involves social, fiscal or moral policy, but may apply closer scrutiny where the differentiation relates to a characteristic intrinsic to the human person or affects a vulnerable group.
Identifies the object of the 2004 Act, drawing from its Long Title:
- Its primary purpose is to provide, “in accordance with the exigencies of the common good, for a measure of security of tenure for tenants of certain dwellings”.
- Part 4 and s. 39 implement this by giving continuing protection to certain co‑resident family members when a tenant dies.
Identifies the comparator:
- The appropriate comparator is an adult child (18+) of a deceased tenant, living in the dwelling at the time of death, who enjoys an automatic right to elect to continue the tenancy.
- EW is identically situated in all respects save age: he is the child of the tenant, co‑resident, and bereaved, but excluded only because he is under 18.
Considers whether the classification (children under 18 vs. over 18) is a “categorisation of concern” requiring close scrutiny:
- Age is an intrinsic and immutable characteristic “at any given time”.
- Article 42A gives constitutional recognition to childhood as a distinct status, reflecting children’s vulnerability.
- Where a statute expressly gives a benefit to those over 18 in a parental‑death context but denies it to those under 18 in identical circumstances, this distinction requires heightened scrutiny.
Rejects the State’s attempt to treat “differences of capacity” as an answer in itself:
- Article 40.1 allows the Oireachtas to have due regard to differences of capacity and social function, but that is one element in the equality analysis, not its starting and finishing point.
- To rely on lack of capacity as an automatic justification would invert the constitutional logic; the Court must first ask whether, given the vulnerability of children, the classification passes close scrutiny.
Examines the rationality of the distinction:
- The State invokes:
  - Contractual incapacity of minors (beyond “necessaries”).
  - The State’s broader child‑welfare obligations (e.g. under the Child Care Act 1991).
  - Landlords’ property rights.
- Donnelly J notes:
  - Common law allows minors to contract for necessaries, including somewhere to live; they can be bound (at least until avoidance) by such contracts.
  - Other legal mechanisms exist for those lacking capacity (e.g. decision‑making representatives under the Assisted Decision‑Making (Capacity) Act 2015).
  - Section 39 already significantly interferes with landlords’ rights by requiring them to accept adult successors (including, for example, newly arrived cohabitants or adult children who have only just moved in). The landlord’s real interest is in performance of the tenancy, not the identity per se of the tenant.
  - A bereaved 14‑year‑old long‑term occupant may be far more “known” and predictable to the landlord than an adult child or parent who moved in shortly before the tenant’s death.
Concludes that the omission of any provision for minor children in occupation is arbitrary and irrational:
- The distinction is “impermissibly wide and indiscriminate” (echoing the language of Cox v Ireland), as it takes no account of:
  - Children’s varying capacities;
  - The constitutional status of childhood under Article 42A;
  - The central role of security of tenure and the dwelling in human flourishing.
- It provides a significant benefit to adult children and other adults in occupation, while providing no pathway at all for minor children – even where a guardian is ready and able to assume tenancy obligations on the child’s behalf.
- This under‑inclusiveness cannot be reconciled with the primary purpose of the Act or the constitutional demand that children’s rights be taken seriously.

Accordingly, she finds that s. 39 is inconsistent with Article 40.1 “insofar as it does not extend to EW, a child under the age of 18 years”.

3.6 Remedy

The challenge is framed as one of under‑inclusiveness. Following the approach in O’Meara, Donnelly J:

Issues a declaration that s. 39 is inconsistent with the Constitution insofar as it fails to extend to EW (i.e. a narrow declaration tailored to the plaintiff’s situation).
Leaves it to the Oireachtas to design the positive legislative solution (e.g. how minors or their guardians might be enabled to succeed to tenancies; what conditions might attach).
Noted that damages were pleaded but not pursued in submissions.

4. Precedents and Authorities: Their Role in the Judgment

4.1 Equality Jurisprudence: Donnelly and O’Meara

Donnelly v Minister for Social Protection and O’Meara v Minister for Social Protection are the cornerstones of modern Article 40.1 analysis:

Donnelly:
- O’Malley J articulated a structured approach to equality challenges:
  - Article 40.1 targets discrimination grounded in arbitrary, capricious or irrational considerations.
  - The challenger bears the burden of proof; the presumption of constitutionality applies.
  - Deference is owed to the Oireachtas, particularly in social/fiscal/moral policy.
  - However, where legislation differentiates based on aspects intrinsic to human personality or concerning a vulnerable group prone to prejudice/stereotyping, a “particularly close scrutiny” is warranted.
- Importantly, she used the language of “suspect” grounds but expressly disavowed importing rigid foreign doctrines.
O’Meara:
- O’Donnell CJ applied Donnelly to survivor’s pensions that discriminated against children of unmarried parents.
- He stressed that all children, regardless of their parents’ marital status, are equal under the Constitution; stark differential treatment in the event of parental death requires “particular justification”.
- He also described characteristics such as gender, race, ethnicity and age as intrinsic to the human person.

Donnelly J leans heavily on these decisions, but subtly evolves the framework by:

Recasting “suspect grounds” as “categorisations of concern” to avoid importing foreign tiered‑scrutiny schemas.
Explaining that age, in light of Article 42A, can be a categorisation of concern in certain contexts, particularly where minors are excluded from a benefit extended to adults.
Emphasising vulnerability as a key determinant in deciding whether closer scrutiny is appropriate.

4.2 Procedural Cases: Galvin, SM, and Order 84

The judgment’s procedural analysis draws on:

Galvin v DPP:
- Court of Appeal decision (procedural) and later Supreme Court decision (substantive) on premature judicial review.
- Collins J in the CA stressed that constitutional challenges should normally be brought plenarily, and analysed Order 84 rr. 22, 27(5), 27(7), which allow courts to direct that judicial review applications be converted to or continued as plenary actions.
- Donnelly J adopts that reasoning and confirms that r. 27(5) can be engaged at any point after the first return date (not only at final hearing), because of its “continue as if begun by plenary” language.
SM v Ireland:
- Kearns J recognised that in some circumstances a constitutional challenge to legislation can be “tacked on” to a judicial review of an underlying administrative decision.
- Donnelly J treats that principle cautiously: where the administrative challenge falls away (as here against Clúid), the justification for piggy‑backing a constitutional challenge in judicial review diminishes.

She concludes that while there was enough evidential basis to proceed in this particular appeal, the High Court should in future be more alert to remitting such cases for plenary hearing, especially once any underlying administrative decision is no longer in play.

4.3 Children’s Rights: Re JB & KB, Re JJ, CFA v McD, AZ, criminal cases, and the UNCRC

Re JB & KB (Minors) and Re JJ:
- Described Article 42A as making the Constitution “more clearly child‑centred” and effecting a “recalibration” towards a more child‑oriented approach to interpretation.
- Stated that Article 42A.1’s change is one of emphasis rather than substance, but still significant.
CFA v McD:
- Hogan J observed that Article 42A “imposes a specific obligation on the Court to consider the best interests of each child”.
AZ, MZ and CZ v Minister for Justice:
- Woulfe J held that Article 42A.1 is of general application and requires the Minister to consider a child’s rights and welfare when making deportation decisions seriously affecting that child.
- Collins J emphasised that the child’s best interests are a primary consideration, though not the sole one.
Recent criminal law cases (The People (DPP) v CC, PB, DOE):
- Recognise that Article 42A, while primarily about adoption and child‑care, is also an express recognition of “the status of childhood”.

Donnelly J uses this line of authority to justify applying a more demanding equality analysis where a statute differentiates between adults and children, especially in a context as fundamental as loss of home on the death of a parent.

She also briefly references the UN Convention on the Rights of the Child and its General Comment on adolescence, making clear that:

The UNCRC is not part of domestic law but is an accepted interpretive aid.
It supports the view that children’s capacities evolve, and that the law often recognises this by using graduated age thresholds and by hearing the voice of the child in certain proceedings.

4.4 Article 40.5: Damache, Meath CC v Murray, McDonagh, Pepper Finance

To situate Article 40.5, the Court relies on:

Damache v DPP – a foundational case on search warrants and the inviolability of the dwelling, emphasising substantive protection for the home.
Meath CC v Murray – cautioning against expansive readings of Article 40.5 beyond its traditional procedural and limited substantive contexts, advocating incremental change.
Clare CC v McDonagh – acknowledging that proportionality analysis may apply when State bodies seek to evict residents.
Pepper Finance v Persons Unknown – where the Court of Appeal suggested, and the Supreme Court left open, that proportionality under Article 40.5 may not apply to purely private disputes between landlords and occupants.

Donnelly J ultimately declines to find a free‑standing Article 40.5 breach, emphasising that the dispute is essentially between a private landlord (albeit an approved housing body) and a non‑tenant occupier; but she affirms that Article 40.5 remains a powerful statement of the constitutional significance of the dwelling, feeding into the equality analysis rather than providing an independent ground of invalidity here.

4.5 On Age and Equality: Re Employment Equality Bill 1996, Mallon, MG v Oberstown, B (A Minor) v Oberstown

Re Employment Equality Bill 1996:
- Previously held that age discrimination falls into a different category from discrimination on sex or race.
- Nonetheless affirmed that both the aged and the young are entitled to protection against discriminatory laws unless the differentiation is related to a legitimate objective and is not arbitrary or irrational.
- Donnelly J notes it predates Article 42A and must now be read in that light.
MG v Director of Oberstown:
- Simons J upheld different procedures for maintaining order among child detainees versus adult prisoners, stressing deference but also the need to respect other constitutional rights.
- Illustrates that age-based distinctions can be justified where directly linked to children’s protective needs.
B (A Minor) v Director of Oberstown:
- Recognised a constitutional imperative to protect children in detention, again underlining that some age-based distinctions are constitutionally required in the child’s interest.
Mallon v Minister for Justice:
- Not discussed in depth here, but cited as part of the debate over whether age warrants heightened scrutiny. Donnelly J’s position is that age sometimes does so, especially in the light of Article 42A when minors are excluded from benefits enjoyed by adults.

5. Legal Reasoning and Its Significance

5.1 The Equality Analysis: From Ordinary Rationality to Close Scrutiny

The key novelty in this judgment lies in its refinement of the Article 40.1 methodology. The central moves are:

Recharacterising “suspect” classifications as “categorisations of concern”, which may attract closer scrutiny depending on context, but without rigid tiers of review.
Locating “age” – in the specific context of childhood – within this category of concern, given:
- Its immutability at a given point in time;
- The vulnerability associated with childhood;
- The express constitutional recognition of children’s imprescriptible rights in Article 42A.
Insisting that “differences of capacity” cannot be a trump card:
- The Constitution permits differentiation that has “due regard” to differences of capacity.
- However, where legislation excludes minors from a benefit given to adults in otherwise identical circumstances because of that lack of capacity, the Court must ask whether the exclusion is truly tailored and justified, or broad, blunt and oblivious to children’s varying needs and capacities.
Highlighting vulnerability as a driver of closer scrutiny:
- She interprets Donnelly as directing courts to guard against both overt prejudice and more subtle, “groundless assumptions” about vulnerable groups.
- Children, especially bereaved minors from lone‑parent families, are a paradigm vulnerable group.

Applying this to s. 39, the Court finds the exclusion of minors to be:

Inconsistent with the core legislative purpose – security of tenure after a tenant’s death.
Insufficiently connected to the legitimate concerns about contractual capacity or landlord rights, given existing legal tools (contracts for necessaries, guardianship, decision‑making representatives).
So broad and unnuanced that it amounts to an arbitrary denial of equal respect and protection, in circumstances where the harm to children (loss of home, compounded bereavement) is especially severe.

5.2 Article 42A as a Structural Principle in Equality Review

A second major contribution is the way Article 42A is deployed:

Not merely as an independent rights‑bearing provision, but as a structural principle that shifts how courts interpret other rights (here, equality).
It compels courts to see children as independent rights‑bearers, not merely appendages to their parents’ legal status.
It demands that legislative classifications that disadvantage children not be treated as routine, especially where the classifications track age alone and ignore the reality of children’s needs and capacities.

In effect, Article 42A is used to justify ratcheting up the standard of review under Article 40.1 when the distinction in question is “child vs adult”, in contexts that strike at the core of children’s welfare (home, family, stability).

5.3 The Home and Security of Tenure as Constitutional Values

Although the Court does not find an independent violation of Article 40.5, it treats:

The inviolability of the dwelling (Article 40.5);
The protection of personal rights (Article 40.3);
The Preamble’s references to the dignity and freedom of the individual and the common good;

as part of a coherent constitutional value‑set that recognises:

Security in one’s home as integral to human flourishing;
The family home as particularly important for children’s development and social participation;
The desirability of stability in community life, schooling, caregiving arrangements and support networks.

She therefore sees s. 39 as implementing, not conflicting with, these values for adults – but as failing constitutionally by refusing that same alignment in respect of children under 18.

5.4 Under-Inclusiveness and Remedial Minimalism

In line with O’Meara, the judgment frames the problem as one of under‑inclusiveness: the legislature has conferred a benefit (protection against homelessness on death of a tenant) on a class (adult co‑residents) but unjustifiably omitted another class (minor co‑resident children).

The remedial response is correspondingly restrained:

The Court does not read into s. 39 a complete scheme for minors.
It issues a declaration of inconsistency as regards EW’s exclusion.
It leaves the design of a comprehensive legislative solution – including mechanisms for guardians to assume tenancies, eligibility criteria, and safeguards for landlords – to the Oireachtas.

This exemplifies a consistent Supreme Court pattern: robust in identifying unconstitutional exclusions, cautious in crafting positive substitutes. It reflects respect for separation of powers while still giving effective vindication to the plaintiff’s rights through declaratory relief.

5.5 Procedural Guidance for Future Constitutional Challenges

The judgment also provides practice‑oriented guidance:

Constitutional challenges to legislation should normally be brought by plenary summons.
An applicant who chooses judicial review bears the burden of justifying that choice, especially where the constitutional dimension predominates.
The High Court should, at an early stage, actively consider making orders under Order 84 rr. 22 or 27(5) to:
- Direct that the matter be brought or continued as if by plenary summons;
- Ensure that evidence and pleadings are suited to the gravity and complexity of constitutional adjudication.

This is an implicit warning both to litigants (not to rely on judicial review as a shortcut for complex constitutional litigation) and to judges (to use procedural tools to ensure adequate evidential foundations).

6. Complex Concepts Simplified

6.1 Judicial Review vs Plenary Proceedings

Judicial review is a fast‑track procedure, usually based on affidavit evidence, designed to review decisions of public bodies for legality (fair procedures, error of law, etc.).
Plenary proceedings are full civil actions begun by plenary summons, with pleadings, discovery, oral evidence, and cross‑examination.
Because constitutional challenges often require detailed factual exploration and can have wide effects, the Court prefers plenary proceedings unless there is a compelling reason for speed and the facts are largely uncontested.

6.2 Under-Inclusive Legislation

A law is under‑inclusive when:

It pursues a legitimate goal by conferring a benefit or protection on some people;
But unjustifiably excludes others who are similarly situated in relevant respects.

Here, s. 39 protects adult co‑resident family members of a deceased tenant, but excludes minor co‑resident children. The Court’s task is to decide whether there is a rational, non‑arbitrary reason for that exclusion, especially given children’s heightened vulnerability.

6.3 “Categorisations of Concern” and Close Scrutiny

Rather than speaking of “suspect classifications” (a term loaded with comparative‑law baggage), the judgment speaks of categorisations of concern – characteristics like race, gender, disability, or, in appropriate contexts, age/childhood – where:

History or social reality suggests a risk of prejudice, stereotyping, or unconscious bias; or
The characteristic is deeply tied to personal identity and cannot be altered by individual choice.

Legislation differentiating on these grounds is not automatically unconstitutional, but courts will examine it more closely to ensure the distinction is genuinely justified and not simply an expression of unexamined assumptions.

6.4 Articles 40.3, 40.5 and 42A in Plain Terms

Article 40.3: The State must respect, and as far as practicable defend and vindicate, the personal rights of citizens – such as bodily integrity, mental health, dignity, and certain unenumerated rights.
Article 40.5: The dwelling of every citizen is inviolable; the State may not forcibly enter except in accordance with law, and the Article also carries substantive respect for the home.
Article 42A.1: The State recognises that children have natural, imprescriptible (cannot be taken away) rights, and must protect and vindicate those rights as far as practicable by its laws.

Together, they signal that the home, mental and physical integrity, and the rights of children have special weight in constitutional interpretation, even where no single provision is independently decisive.

7. Potential Impact and Future Directions

7.1 Housing and Tenancy Law

If adopted by a majority in some future case, the approach in this judgment would have clear implications:

The Oireachtas would be under strong pressure to amend s. 39 of the 2004 Act to provide:
- Some mechanism for minor children in occupation to continue the tenancy on a parent’s death;
- Possibly through:
  - Recognising minors (especially older adolescents) as capable of entering tenancy contracts for “necessaries”;
  - Allowing legal guardians, trustees, or decision‑making representatives to assume tenancies on the minor’s behalf;
  - Requiring court oversight in difficult cases.
Approved housing bodies and local authorities would need to review policies on succession and family‑breakdown scenarios involving children.

7.2 Equality Doctrine

Doctrinally, the judgment:

Consolidates Donnelly and O’Meara as the dominant framework for Article 40.1.
Signals that age-based distinctions affecting children can, in some contexts, be treated as categorisations of concern requiring close scrutiny, especially when legislation:
- Confers protection or benefits on adults;
- But exposes children to special harm (e.g. homelessness, family disruption);
- Without exploring more nuanced ways to accommodate their capacities and needs.

This could influence future challenges involving:

Social welfare and family benefits for children in non‑traditional family structures;
Access to education, healthcare or services where age thresholds have blunt effects;
Procedural rights of children in administrative processes that affect their residence or stability.

7.3 The Role of Article 42A Beyond Child-Care Proceedings

The judgment reinforces a trend already visible in AZ:

Article 42A is not limited to child‑care cases in the courts.
It has implications for all areas of law where State action or inaction significantly affects children’s welfare, including immigration, housing, and possibly criminal justice.

Future litigants may invoke Article 42A:

To argue that legislation must be interpreted or applied consistently with a child‑centred approach;
To justify closer scrutiny of statutory classifications that disadvantage children or fail adequately to consider their best interests.

7.4 Procedural Practice in Constitutional Litigation

Practitioners can expect:

Greater judicial insistence that plenary proceedings be used for complex constitutional challenges.
Increased use by the High Court of Order 84 rr. 22 and 27(5) to convert or remit judicial review proceedings to plenary where constitutional issues predominate.
Heightened attention to evidential sufficiency when asserting breaches of personal rights (e.g. mental integrity) and the need for proper medical or expert evidence rather than cursory letters.

8. Conclusion

This judgment by Donnelly J, though evidently not the majority view in the Supreme Court, presents a sophisticated and child‑centred reworking of Irish equality law in the context of housing.

Doctrinally, it:

Applies and refines the Donnelly/O’Meara framework, emphasising that certain classifications – here, the distinction between minor and adult children in the aftermath of a parent’s death – must undergo close scrutiny.
Uses Article 42A.1 to recalibrate the equality analysis, treating children as independent constitutional rights‑bearers whose vulnerability and status demand particular attention.
Affirms the constitutional value of security of tenure and the dwelling, linking the 2004 Act’s objectives to broader constitutional commitments to dignity, freedom and the common good.

Substantively, the judgment concludes that s. 39 of the Residential Tenancies Act 2004 is inconsistent with Article 40.1 insofar as it excludes minor children in occupation from succeeding to a deceased parent’s tenancy, while permitting adult family members in identical circumstances to do so. The exclusion is found to be arbitrary and irrational, misaligned with both the statute’s own purpose and the constitutional recognition of children’s rights and the centrality of the home.

Procedurally, the judgment reiterates that constitutional challenges should as a rule be brought by plenary action, provides guidance on the use of Order 84 to safeguard the integrity of constitutional adjudication, and signals to litigants the evidential standard expected when asserting personal rights violations.

Even as a minority opinion, this judgment is likely to become a significant reference point in future litigation on:

Children’s rights in housing and social welfare;
The role of Article 42A in equality analysis;
The treatment of age‑based classifications in Irish constitutional law.

It is best understood as a strong judicial statement that, in a Constitution that now expressly recognises the “natural and imprescriptible rights of all children”, the law must take those rights seriously when designing frameworks that determine whether bereaved children can remain in the homes they have known.

Children’s Equality, Tenancy Succession and Close Scrutiny of Age-Based Classifications: Commentary on ZG & EW (A Minor) v Ireland & Attorney General