Inviolability of the Dwelling and Child Tenants: Constitutional Duties to Remedy Legislative Omissions in Tenancy Law

I. Introduction

A. The case in outline

This commentary examines the judgment of Hogan J. in ZG and EW (a minor) suing by his aunt and next friend ZG v Ireland, the Attorney General, with Clúid Housing Association as notice party and the Irish Human Rights and Equality Commission as amicus ([2025] IESC 49). The case arises from the tragic circumstances of a 17-year-old boy, EW, whose mother was murdered in 2023. She had been the tenant, under a Part 4 tenancy governed by the Residential Tenancies Act 2004 (“the 2004 Act”), of a dwelling owned by Clúid Housing Association. Upon her death, the tenancy lapsed automatically.

EW, who had lived with his mother in that apartment, did not fall within the categories of persons entitled under s.39(3) of the 2004 Act to elect to take over the tenancy. He moved to live with his grandparents; Clúid, while not re-letting the property in light of the exceptional circumstances, sought to terminate the tenancy.

The core constitutional claim is framed as one of unconstitutionality by omission. The appellants do not contend that s.39(3) itself should be struck down as invalid. Rather, they argue that the Oireachtas, by failing to provide any mechanism to protect the position of a minor child who remains an occupier of the dwelling after the tenant-parent’s death, has created an unconstitutional lacuna in the statutory scheme. EW’s position is especially poignant: he risks the loss of his home in addition to the violent loss of his mother.

B. Central legal issues

Two broad clusters of issues arise:

Procedural form: Whether a challenge of this kind – essentially to the constitutionality of a legislative scheme – ought to be brought by plenary summons rather than judicial review, and what that implies for constitutional litigation practice.
Substantive constitutional questions:
- The scope and meaning of Article 40.5 (the “inviolability” of the dwelling): is it confined to search and seizure, or does it have broader civil and even social implications?
- The role of Article 42A (children’s rights), especially Article 42A.1, in tandem with Article 40.5.
- Whether the failure of the Oireachtas to legislate for the position of a minor occupant on the death of a tenant-parent constitutes an unconstitutional omission, and what remedies may follow.

In the course of his judgment, Hogan J. engages in an extensive textual, historical and comparative analysis of Article 40.5, connects it to the relatively new children’s rights provision in Article 42A, and then applies those norms to the tenant-succession rules in the 2004 Act. He concludes that the Oireachtas is in breach of its constitutional obligations, and contemplates (following Heneghan v Minister for Housing (No. 2)) the possibility of an order requiring the Oireachtas to legislate by a given date.

Hogan J. refers explicitly to “criticisms…in the majority judgment”, indicating that this is at least a distinct opinion and possibly a dissent or partial dissent. The extract provided does not include the majority’s reasons. This commentary therefore focuses on the principles articulated by Hogan J., which are of considerable significance whether or not they ultimately represent the Court’s ratio decidendi.

II. Summary of the Judgment

A. Procedural point: judicial review vs plenary summons

Hogan J. agrees with O’Donnell C.J. and Donnelly J. that challenges which effectively seek a declaration of unconstitutionality should generally be commenced by plenary summons rather than judicial review. While there is “no rigid rule” (following Barrington J. in Riordan v An Taoiseach (No. 2) [1999] 4 IR 343), plenary proceedings better facilitate fact-finding, which is “generally of the essence in constitutional litigation” (see also the Court’s observation in Galvin v DPP [2025] IESC 35).

In this particular case, as the material facts are essentially undisputed, the Court proceeds to determine the constitutional issues despite the use of judicial review.

B. The scope of Article 40.5: beyond criminal procedure

The core substantive part of the judgment is a thorough reconsideration of Article 40.5:

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

The key conclusions are:

Article 40.5 is not confined to search-and-seizure scenarios akin to the US Fourth Amendment. The explicit use of the word “inviolable” suggests a broader and more elevated protection of the dwelling.
The provision has two elements:
1. a positive guarantee that the dwelling is “inviolable”; and
2. a saving clause permitting forcible entry “in accordance with law”.
The second element cannot be allowed to eclipse the first.
Historical and comparative analysis (Irish Free State Constitution 1922, the Weimar Constitution, French constitutional texts, and the Irish language version – “Is slán do gach saoránach a ionad cónaithe…”) demonstrates that “inviolability” expresses the ideas of safety, security and sanctuary.
Prior case law, including The People (AG) v O’Brien [1965] IR 142 and Irish Life and Permanent Building Society v Duff [2013] 4 IR 96, indicates that Article 40.5 can imply procedural and substantive constraints on the State and private actors in relation to the home, not merely the exclusion of unlawfully obtained evidence.

Hogan J. therefore interprets Article 40.5 as protecting a “safe, secure, and private zone” (picking up academic commentary) and as capable of having implications beyond the criminal sphere, including in landlord–tenant relations.

C. Article 42A and children’s rights

Turning to Article 42A, Hogan J. focuses on 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.”

Drawing on the Court’s earlier decision in AZ v Minister for Justice and Equality [2024] IESC 35, he emphasises that:

Article 42A.1 is a general guarantee applying to all facets of a child’s life, except where Article 42A.4 applies; and
Under Article 42A.1, the State must have regard to the best interests of the child, though those interests are not always “paramount” (a standard reserved for specified proceedings under Article 42A.4).

Against that background, he is “struck by the complete failure” of the Oireachtas to legislate for the position of a child who effectively becomes an orphan in circumstances like EW’s and who risks losing the home in which he has grown up.

D. Unconstitutionality by omission

On the substantive complaint, Hogan J. finds that:

Section 39(3) of the 2004 Act sets out categories of eligible successors to a Part 4 tenancy on the tenant’s death. Minors are not among them, and no mechanism exists for a legal guardian or relative to continue the tenancy on their behalf.
The tenancy automatically terminates on the tenant’s death, with no notice, no foreseeability, and no independent determination of whether it is necessary that the minor occupant loses his home.
In circumstances such as EW’s – where the landlord had no ground to terminate the tenancy but for the tragic death of the tenant – this automatic termination, with no statutory protection for the minor occupant, compromises the essence of the inviolability guarantee in Article 40.5, read together with the child-protection mandate of Article 42A.1.

He therefore concludes that:

“the Oireachtas was (and is) in breach of its constitutional obligation to uphold and protect the inviolability of the dwelling in Article 40.5, when read in the case of a minor child in conjunction with Article 42A.1, by failing to provide for any mechanism whatsoever whereby a child under 18 can seek to remain in a family home by having a legal guardian taking over the lease following the death of a parent who was a tenant of the premises.”

He would allow the appeal to that extent.

E. Remedy and the duty of the Oireachtas

Relying on Heneghan v Minister for Housing (No. 2) [2023] 3 IR 419, Hogan J. emphasises that:

A declaration of unconstitutionality (including one based on legislative omission) creates an immediate constitutional obligation on the Oireachtas to remedy the breach “as soon as feasible”.
This duty lies on the current Oireachtas and is not merely exhortatory or symbolic.
A “demonstrable failure” to take steps to legislate would itself amount to a further breach of a “clear constitutional duty”.

He therefore proposes to invite submissions from the parties as to whether a further order, requiring the Oireachtas to legislate by a specified date, is necessary or appropriate.

III. Detailed Analysis

A. Procedural form and fact-finding

At the outset the Court deals with the form of proceedings. Hogan J., echoing earlier jurisprudence, reiterates three key points:

No rigid rule on form: Following Barrington J. in Riordan v An Taoiseach (No. 2) ([1999] 4 IR 343 at 350–351), there should be no overly technical insistence on form. The Constitution itself contemplates that invalidity can be found in the course of an Article 40.4 (habeas corpus) application, which is not plenary litigation in the ordinary sense.
Preference for plenary summons in constitutional challenges: As a practical matter, where the “real objective” of proceedings is to obtain a finding of unconstitutionality, plenary proceedings are often more appropriate. They allow for pleadings, discovery, witnesses, and cross-examination, thereby generating clear findings of fact essential for constitutional adjudication.
Fact-finding is “of the essence” in constitutional litigation: Drawing on Galvin v DPP [2025] IESC 35, he underscores that frequently constitutional validity cannot be determined in the abstract; empirical and contextual facts may be critical to assessing proportionality, necessity, or impact on rights.

Although the Court does not invalidate the proceedings on this basis (because the facts are not disputed), the judgment sends a strong signal to litigants and lower courts: constitutional challenges to legislation should, save in special circumstances, be brought as plenary actions. This has practical implications for access to evidence, timetables, and the design of public interest test cases.

B. Article 40.5: the inviolability of the dwelling

1. Textual structure: “inviolability” plus a saving clause

The first substantive question is whether Article 40.5 is merely an Irish analogue of the US Fourth Amendment (protecting against unreasonable searches and seizures), or whether it goes further. Hogan J. begins with the text:

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

He makes a crucial interpretive move: had the framers only intended to regulate forcible entry, they could have omitted the phrase “is inviolable and” and simply prohibited forcible entry except in accordance with law. Instead, they chose a structure with two distinct elements:

A positive declaration: “The dwelling of every citizen is inviolable”; and
A proviso: it shall not be forcibly entered except in accordance with law.

Citing Walsh J. in AG v O’Brien [1965] IR 142 at 169, he reaffirms that the guarantee is not limited to a ban on forcible entry: the reference to forcible entry simply indicates that, even where law authorises entry, the dwelling remains “inviolable save where entry is permitted by law”.

2. Historical and comparative context

Hogan J. undertakes an extensive comparison with earlier and foreign constitutional texts:

Irish Free State Constitution 1922: Article 7 contained a virtually identical guarantee, also speaking of the inviolability of the dwelling. The differences with Article 40.5 are merely verbal (“each citizen” vs “every citizen”, “except” vs “save”).
Weimar Constitution 1919 (Article 115): Described the dwelling of every German as a “sanctuary” and “inviolable”, subject to exceptions authorised by law. Scholarly work (Hand, Cahillane) has shown strong Weimar influence on the 1922 Irish Constitution.
French constitutional tradition: The Weimar clause itself drew on earlier French constitutional provisions, particularly Article 3 of the 1848 Constitution, which became the prototype for many European “inviolability of the home” clauses.
Personal liberty clauses: Similar language (“inviolable”) is used in several continental constitutions (e.g. Article 13 of the Italian Constitution; Article 114 of the Weimar Constitution; Article 6 of the Free State Constitution) to describe personal liberty, even where those texts also permit arrest, detention and search “in accordance with law”.

From this history, Hogan J. draws two linked conclusions:

The concept of “inviolability” has civilian roots and does not map neatly onto common law traditions, where comparable protections developed largely through judge-made principles rather than constitutional text.
The use of “inviolability” suggests that the home, like personal liberty, is accorded an elevated, foundational status, representing a baseline of security and dignity inherent in a free society.

3. The Irish language text: “Is slán do gach saoránach a ionad cónaithe…”

The Irish text of Article 40.5 reads:

“Is slán do gach saoránach a ionad cónaithe, agus ní cead dul isteach ann go foréigneach ach de réir dlí.”

Ó Cearúil translates this as:

“His place of residence is secure for every citizen, and it is not permitted to go into it forcibly except in accordance with law.”

Hogan J. notes (echoing his earlier judgment in Sullivan v Boylan [2012] IEHC 385) that the Irish text “captures and expresses the essence” of inviolability through the idea that the dwelling is slán – safe, secure, protected.

This reinforces the notion that Article 40.5 is not merely about procedural warrants, but about guaranteeing a zone of safety and security for the person and for family life – a theme Hardiman J. famously emphasised in DPP v O’Brien [2012] IECCA 68.

4. Inviolability as a “defensive social right”

Citing recent scholarship (McLoughlin, 2024), Hogan J. endorses the view that Article 40.5 serves to ensure “a safe, secure, and private zone in which the dignity of the human person is protected”.

He links this with other constitutional guarantees:

Dignity of the individual (Preamble);
Protection of the person (Article 40.3.2°);
Protection of family life (Article 41);
Protection and education of children (Article 42, now supplemented by Article 42A).

The inviolability of the dwelling thus “complements and reinforces” a network of individual and family rights. It is not a full-blown socio-economic right in the sense of an unconditional entitlement to housing, but it functions as what McLoughlin calls a “defensive social right”: it requires the State (and, indirectly, private actors) to respect certain minimum conditions of stability and fairness when interfering with a person’s home.

5. Balancing with landlords’ property rights

Hogan J. expressly acknowledges that Article 40.5 cannot be read “absolutely literally”. The saving clause (“save in accordance with law”) and Article 40.3.2° (protection of property rights) require a holistic constitutional reading (as emphasised in Heneghan v Minister for Housing [2023] 3 IR 419).

He recognises that:

Landlords have constitutionally protected property rights in their reversionary interest in the property and in the contract of tenancy (see Blake v AG [1982] IR 117).
The Oireachtas is entitled – indeed required – to legislate to strike a fair balance between landlord and tenant, ensuring that the “essence” of landlords’ rights is not destroyed.

Thus:

Where a tenant fails to pay rent or engages in serious anti-social behaviour, the landlord’s right to recover possession, in accordance with the 2004 Act’s procedures, will generally prevail; Article 40.5 does not give tenants an absolute immunity.
But where, as in EW’s case, the tenancy is terminated solely because of the tenant’s death, and the other occupant is a minor, the constitutional balance may tilt differently.

6. The specific constitutional problem in this case

Hogan J.’s key move is to link the structural features of the 2004 Act with the constitutional guarantee:

EW’s late mother had a Part 4 tenancy. Under s.66 and Table 1 (as amended), she would ordinarily have been entitled to a significant notice period (180 days) upon termination.
However, because the statutory scheme provides that the tenancy ceases on death and contains no succession mechanism for minors, none of these protections applies when the tenant dies leaving a minor occupant.
EW, as minor occupant, receives no formal notice, cannot foresee the legal consequences of the death, and has no access to an independent tribunal to assess the necessity or proportionality of his eviction.

Hogan J. connects this with his earlier reasoning in Irish Life and Permanent Building Society v Duff [2013] 4 IR 96, where he held that Article 40.5 presupposes elements of:

formal notice;
foreseeability; and
independent adjudication of the objective necessity for repossession.

These, he says, are “key values comprised in the very essence” of the inviolability protection. By omitting any such mechanism where a minor is left in occupation, the statutory scheme fails to secure the minimum procedural and substantive safeguards implicitly required by Article 40.5 in this context.

C. Article 42A and the rights of the child

1. Article 42A.1 as a general guarantee

Article 42A.1 represents a significant constitutional innovation:

“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.”

In AZ v Minister for Justice and Equality, the Court clarified the structure of Article 42A:

Article 42A.1 is a general clause applying to all children and all areas of life.
Article 42A.4 applies to specified proceedings (child protection, adoption, guardianship, custody, access) and mandates that the “best interests of the child” be the paramount consideration.

Building on this, Hogan J. explains (drawing on Woulfe J.’s analysis in AZ) that:

In all legislative activity and in many executive decisions, the State must now have regard to the best interests of the child, as one factor among others.
Only in the specific Article 42A.4 contexts does the child’s best interests override all other considerations by being “paramount”.

2. Legislative failure and the orphaned child tenant

Hogan J. is especially troubled by the complete absence of any statutory mechanism to respond to the position of a child like EW, who is effectively orphaned and faces the loss of his home:

It is longstanding policy that minors do not hold real property or contractual interests in immovable property; but Hogan J. sees this as no barrier to the Oireachtas crafting a solution (for example, allowing a relative or legal guardian to step into the tenancy for the child’s benefit).
Such a mechanism would not guarantee indefinite tenancy; but it would ensure that, where appropriate, the child could remain in the family home, subject to a fair balancing of landlord and child interests.

The failure to legislate in any way for such a scenario, despite the enactment of Article 42A and its explicit mandate, is seen as a breach of the State’s duty to protect and vindicate children’s rights “as far as practicable”.

3. Answering the “political question” argument

A predictable objection is that questions of tenant succession, housing policy, and balancing property rights are quintessentially political questions for the Oireachtas, not the courts.

Hogan J. addresses this head-on:

The Constitution expressly assigns courts the task of judicial review of legislation (Article 34.3.2°). That power, while to be exercised with “great care”, is a necessary check in a constitutional system.
Article 42A was inserted by referendum in 2012 and came into force in 2015; it represents the People’s considered decision to elevate children’s rights and, crucially, to require the State to give them practical effect “by its laws”.
The complaint here is not about second-guessing a particular legislative policy choice among many permissible options, but about the Oireachtas’s complete failure to address a category of vulnerable children at all, in a context central to their security and well-being.

He therefore characterises the fault as one of unconstitutionality by omission: the Oireachtas, confronted with Article 40.5 and Article 42A.1, cannot simply leave such an obvious scenario – orphaned child occupants at risk of eviction by operation of law – unregulated.

D. Unconstitutionality by omission and separation of powers

Implicit throughout is the delicate doctrine of unconstitutionality by omission – the idea that the State can violate the Constitution not by enacting unconstitutional provisions, but by failing to enact legislation that is constitutionally required.

Hogan J. is aware of the concerns that such an approach could:

give the judiciary a roving commission to impose its own vision of what is “best for children” or “good policy”; and
blur the separation of powers by compelling the Oireachtas to legislate in particular ways.

He responds in two main ways:

Constitutional mandate: The judicial power of constitutional review is explicitly conferred by the People. It is inherent that, in some cases, courts will find that the absence of legislation results in a failure to vindicate rights which the Constitution says the State must protect “by its laws” (Article 42A.1; cf. the “as far as practicable” language).
Careful use and clear limits: He emphasises that such findings must be rare, grounded in clear textual obligations, and respectful of the legislature’s role in designing the precise policy solution. The Court should identify the constitutional deficit, not prescribe in detail how it must be remedied.

This approach is consistent with the Court’s earlier stance in cases like Buckley v AG [1950] IR 67, where O’Byrne J. stressed that the Constitution must be interpreted so as to give its guarantees “life and reality”, and with more recent jurisprudence (e.g. Heneghan) in which the Court has highlighted legislative duties in areas such as housing assistance.

E. Application to the facts: the lacuna in the Residential Tenancies Act

Applying these principles to EW’s case, Hogan J. reasons as follows:

Nature of the omission: Section 39(3) of the 2004 Act defines categories of persons who may succeed to a tenancy on the death of the tenant. Minors are not included; nor is there any provision allowing a guardian or relative to assume the tenancy on a minor’s behalf. Thus, while the statute contemplates succession in some cases, it wholly omits to provide for the position of an orphaned minor occupant.
Effect of the omission: The tenancy terminates automatically on death; the landlord’s entitlement to recover possession in such a case arises solely by reason of the death, not due to any fault such as non-payment or misconduct.
Article 40.5 violation: Because the statutory scheme provides no notice, no predictability, and no process for assessing whether termination is necessary or proportionate in a case like EW’s, it undermines the core security that the inviolability guarantee is intended to protect, at least in cases where the occupier is a minor.
Article 42A.1 violation: The State has failed, “as far as practicable, by its laws”, to protect the natural and imprescriptible rights of children in this specific and foreseeable scenario – that a child may lose his only home abruptly, following a traumatic bereavement, purely as a function of legislative design.

Hogan J. does not dictate a specific legislative solution but observes that:

There are obvious ways to address the lacuna (e.g. allowing a guardian, aunt, or grandparent to take over or continue a Part 4 tenancy for the child’s benefit, subject to appropriate conditions).
The landlord’s legitimate property interests must still be considered; the solution must strike a “fair balance”, in line with cases such as Blake v AG and Moynihan v Greensmyth [1977] IR 55 (on balancing children’s rights with other constitutional rights).

Nonetheless, because no mechanism whatsoever exists, he concludes that there is an unconstitutional omission.

F. Remedy and the constitutional duty to legislate

Finally, Hogan J. addresses the remedy and the role of the courts vis-à-vis the Oireachtas.

Following O’Donnell C.J.’s reasoning in Heneghan v Minister for Housing (No. 2), he emphasises that:

Once a court finds that legislation (or the lack of it) is unconstitutional, the Oireachtas has a present-tense constitutional duty to remedy the breach “as soon as feasible”.
The duty lies on the current legislature; it crystallises with the delivery of the judgment, and persists until the defect is rectified.
A demonstrable failure to take steps to legislate would constitute a further constitutional breach.

In this case, he proposes to invite submissions on whether the Court should go further and set a deadline for legislative action. Such a structural or supervisory order would mark a further development in Irish constitutional remedies, offering a judicial mechanism to ensure that declarations of unconstitutionality by omission are not ignored in practice.

IV. Precedents and Authorities Cited

The judgment draws on a rich array of case law and scholarly work. The following are particularly significant:

Riordan v An Taoiseach (No. 2) [1999] 4 IR 343
Cited for Barrington J.’s statement that while challenges to legislation are preferably brought by plenary summons, “no rigid rule should be laid down”. This supports a flexible but principled approach to procedural form.
Galvin v DPP [2025] IESC 35
Referred to for the proposition that factual findings are generally “of the essence” in constitutional litigation, underpinning the preference for plenary proceedings.
The People (AG) v O’Brien [1965] IR 142
The foundational Article 40.5 case, dealing with the admissibility of evidence obtained by an unlawful search. Walsh J.’s analysis of “inviolability” is used to show that Article 40.5 is not limited to forcible entry, but broader in scope.
Sullivan v Boylan [2012] IEHC 385
Hogan J.’s own High Court judgment, invoked here to support the interpretation of the Irish text (“Is slán…”) as emphasising safety and security, and to show continuity in his understanding of Article 40.5.
The People (DPP) v O’Brien [2012] IECCA 68
Hardiman J. describes the dwelling as a place of repose and a sanctuary, and frames Article 40.5 as reinforcing personal dignity, privacy, and family life. Hogan J. draws on this to emphasise the normative weight of the inviolability guarantee.
Clare County Council v McDonagh [2022] IESC 2, [2022] 2 IR 122
Cited for the comparative-historical point that Article 40.5 has no true antecedent in common law and is derived from continental models such as the Weimar Constitution.
Heneghan v Minister for Housing [2023] IESC 7; Heneghan (No. 2) [2023] IESC 18, [2023] 3 IR 419
Murray J.’s call for holistic constitutional interpretation is relied upon to balance Article 40.5 with property rights. O’Donnell C.J.’s later judgment in Heneghan (No. 2) is cited for the proposition that the Oireachtas has a concrete constitutional obligation to remedy breaches “now”, and that inaction may itself be unconstitutional.
Blake v Attorney General [1982] IR 117
Referenced as an example of the Court ensuring that legislative regulation of property does not destroy the essence of the right, and as authority for balanced regulation in landlord-tenant contexts.
AZ v Minister for Justice and Equality [2024] IESC 35
Cited for its interpretation of Article 42A: Article 42A.1 as a general guarantee; Article 42A.4 as providing for paramountcy of the child’s best interests in specified proceedings. Woulfe J.’s analysis is particularly noted.
Moynihan v Greensmyth [1977] IR 55
O’Higgins C.J.’s comments on balancing the rights of children with competing rights (here, property rights of landlords) inform the approach that children’s rights are powerful but not always paramount outside Article 42A.4 contexts.
The People v O’Shea [1982] IR 384
Henchy J.’s evocative phrase “the bitter Irish race-memory” is invoked in a historical reflection on the Land War, forced evictions, and the likely historical impetus for the constitutional elevation of the home.
Irish Life and Permanent Building Society v Duff [2013] IEHC 43, [2013] 4 IR 96
Hogan J.’s key High Court decision on whether a creditor can take possession of a dwelling without a court order. He had held that Article 40.5 presupposes elements of notice, foreseeability, and independent adjudication. Those elements are imported into this case as part of the “essence” of inviolability.
Buckley v Attorney General [1950] IR 67
O’Byrne J.’s statement that constitutional rights must be given “life and reality” informs the interpretive method applied to both Article 40.5 and Article 42A.

In addition, the judgment engages with scholarly works by Hand, Cahillane, Kohn, Coffey and McLoughlin, principally on the drafting history of the Irish Constitutions, comparative influences (Weimar, French republican constitutions, Italian Constitution), and the normative character of Article 40.5 as a “defensive social right”.

V. Complex Legal Concepts Simplified

To make the judgment more accessible, the following key concepts are briefly explained:

1. “Inviolability of the dwelling” (Article 40.5)

What it says: Your dwelling is inviolable; it cannot be forcibly entered except in accordance with law.
What it means in practice: The home is treated as a protected space of privacy, security and dignity. The State or private actors cannot interfere with it arbitrarily. Laws affecting your home must build in basic fairness, notice, and some form of independent oversight.

2. Part 4 tenancy (Residential Tenancies Act 2004)

A Part 4 tenancy is a type of tenancy that gives a tenant security of tenure after a certain occupation period, subject to specified statutory grounds for termination.
It normally comes with notice periods and procedural safeguards before the landlord can end the tenancy.

3. “Unconstitutional lacuna” / unconstitutionality by omission

An unconstitutional lacuna arises where the Constitution requires the State to legislate in a particular domain (e.g. to vindicate certain rights) but the Oireachtas has completely failed to do so, or has left out a critical category of persons.
In this case, the alleged lacuna is the absence of any statutory path for a minor occupant (through a guardian) to continue a tenancy on the death of a parent-tenant.

4. “Defensive social right”

This is a term used by scholars to describe constitutional rights that are not full positive entitlements (such as a direct right to State-provided housing), but that constrain how the State may design or operate social and economic systems.
Article 40.5 is characterised as such a right: it does not give everyone a house, but it does limit how people can be dispossessed of their home.

5. Reversionary interest

In landlord–tenant law, the reversionary interest is the landlord’s residual ownership interest in the property, which “reverts” fully once the tenancy ends.
This is a constitutionally protected property right; any legislative scheme must respect it.

6. Plenary summons vs judicial review

Plenary summons: A full civil action where pleadings, discovery, oral evidence, and cross‑examination can all occur. Suited to complex factual or constitutional disputes.
Judicial review: A more streamlined procedure primarily used to challenge administrative decisions (e.g. decisions of public bodies), usually based on the existing record, with limited fact-finding.
The Court says constitutional challenges to legislation should ordinarily be brought by plenary summons, to allow adequate evidence and findings of fact.

7. Best interests of the child (Article 42A)

Article 42A.1: The State must protect and vindicate children’s rights “as far as practicable” by its laws, and must take their best interests into account.
Article 42A.4: In certain specified proceedings (child protection, adoption, custody, access) the child’s best interests must be the paramount consideration, outweighing all others.
Outside Article 42A.4 contexts (like tenancy law), the child’s best interests are a very important factor, but not automatically overriding.

VI. Likely Impact and Broader Significance

A. Impact on housing and tenancy law

If Hogan J.’s approach is followed or becomes influential, several consequences for Irish housing law are likely:

Legislative reform of tenant succession: The Oireachtas will be under strong pressure – and possibly a direct constitutional duty – to amend the Residential Tenancies Act 2004, particularly s.39, to:
- include minors (or their guardians) among those who can succeed to a tenancy; and/or
- create a bespoke process for determining, case by case, whether it is appropriate for a guardian to take over the tenancy of a deceased parent for the benefit of the child.
Procedural safeguards on termination by operation of law: The reasoning in Duff and this case suggests that automatic termination of tenancies on specified events (such as death) may require:
- notice to affected occupants;
- a defined period during which rights can be asserted; and
- a route to independent adjudication (e.g. Residential Tenancies Board or courts).
Policy for social landlords: Bodies like Clúid Housing Association may need to develop internal policies that:
- identify vulnerable child occupants when a tenant dies;
- coordinate with child protection and housing authorities; and
- avoid re-letting or enforcing possession where this would unjustifiably displace a child without due process.

B. Development of Article 40.5 jurisprudence

Historically, Article 40.5 has been most visible in criminal law (unlawful searches, exclusion of evidence). This judgment extends its reach:

It confirms that Article 40.5 is not confined to criminal or quasi‑criminal contexts, but can influence private law relationships and legislative design (e.g. landlord–tenant, mortgage enforcement).
It emphasises that the core of inviolability lies in security, foreseeability and fairness around the loss of one’s home, not merely protection against physical forcible entry.
It supports viewing the right as a defensive social right imposing minimum procedural and substantive safeguards in any system that may deprive people of their dwelling.

Future cases may draw on this to challenge:

summary repossession procedures without judicial oversight;
evictions in the context of homelessness or inadequate alternative accommodation; and
statutory schemes that truncate notice or appeal rights for occupiers, especially vulnerable ones.

C. Consolidation of children’s rights in ordinary law

The judgment also illustrates how Article 42A can influence areas of law not traditionally associated with child welfare:

Tenancy law, housing allocation, and eviction policy must now be framed with explicit consideration of children’s rights – their need for stability, continuity of schooling, and psychological security.
Article 42A.1’s requirement that the State protect children’s rights “by its laws” provides a textual basis for insisting on legislative schemes that anticipate and cater for child‑specific vulnerabilities.

Over time, this may lead to:

special rules for children in homelessness services and emergency accommodation;
heightened duties on public bodies to consider the impact of decisions on children’s housing and education; and
a more systematic integration of the “best interests of the child” standard into regulatory impact assessments.

D. Constitutional remedies and structural orders

Finally, the judgment continues the trend, visible in Heneghan (No. 2), towards more robust remedial tools:

The Court explicitly contemplates orders that do not just declare legislation unconstitutional but require the Oireachtas to legislate within a specified timeframe.
Such structural orders raise delicate separation‑of‑powers questions, but they may become necessary where purely declaratory judgments have led to legislative inertia.

If such orders are made (in this or subsequent cases), they would mark a shift towards a more dialogical model of constitutionalism, in which courts and legislature engage iteratively to ensure rights‑compliant legislative frameworks.

VII. Conclusion

The judgment of Hogan J. in ZG and EW (a minor) v Ireland and the Attorney General is a significant contribution to Irish constitutional law, whether or not it ultimately reflects the majority view.

Its key achievements can be summarised as follows:

It offers a rich, historically informed interpretation of Article 40.5, firmly rejecting a narrow, search‑and‑seizure‑only reading and emphasising the home as a zone of security, dignity and privacy.
It integrates Article 42A’s children’s rights guarantee into the fabric of ordinary civil law, showing that tenancy law and housing policy must take children’s interests seriously, even outside classic child‑protection proceedings.
It articulates a principled form of unconstitutionality by omission, grounded in clear textual obligations (“inviolability”; “as far as practicable, by its laws”), and limited to situations where the legislature has left glaring vulnerabilities unaddressed.
It reinforces the idea that constitutional rights – particularly those protecting the home and children – have procedural and structural implications: notice, foreseeability, and access to an independent decision‑maker are not optional in schemes that can deprive people of their dwellings.
It underscores that declarations of unconstitutionality impose an immediate and concrete duty on the Oireachtas to legislate “as soon as feasible”, and opens the door to supervisory or time‑limited orders to secure compliance.

At a human level, the judgment is animated by the recognition that a child like EW, who has already suffered the violent loss of a parent, should not, by mere legislative default, face the abrupt and unexamined loss of his home as well. At a doctrinal level, it advances a conception of the Constitution that is historically rooted, textually grounded, and attentive to the real conditions under which vulnerable people live.

Whether as binding precedent or as a powerful separate opinion, it is likely to shape future litigation and legislative reform at the intersection of housing, children’s rights, and constitutional remedies in Ireland.