Z.G. & Anor v Ireland & Ors (Approved)

Factual and Procedural Background

This case concerns a constitutional challenge to section 39 of the Residential Tenancies Act 2004 ("s. 39"). The applicant is a minor child, represented by his aunt as next friend and legal guardian, who had lived with his late mother in a rented family home under a Part 4 tenancy. Upon the sudden death of the tenant mother in July 2023, no person qualified under s. 39 to succeed to the tenancy, and the landlord sought to terminate the tenancy. The applicant and his family sought declarations that s. 39 is unconstitutional and violates the European Convention on Human Rights by prohibiting the continuation of the tenancy by a minor child. The High Court refused the application following a judicial review hearing.

Legal Issues Presented

1. Whether section 39 of the Residential Tenancies Act 2004 is unconstitutional by discriminating against minor children in breach of Article 40.1 of the Constitution.
2. Whether s. 39 breaches the rights of a minor child under other constitutional provisions including Articles 40.3, 40.5, 41, 42A, and the European Convention on Human Rights.
3. Whether the exclusion of minor children from succeeding to a Part 4 tenancy upon the death of the tenant constitutes unjustified indirect discrimination based on age and family status.

Arguments of the Parties

Applicant's Arguments

• Section 39 is unconstitutional for failing to allow a minor child under 18 to continue a Part 4 tenancy after the death of the tenant parent.
• The exclusion of minors amounts to indirect discrimination on grounds of age and family status, contrary to Article 40.1 of the Constitution and Article 14 of the ECHR.
• The applicant asserted rights relating to property and family life, and initially raised claims under the European Convention on Human Rights, though these were later deprioritized.
• The applicant’s legal guardian (aunt) is willing to reside in the family home to care for him, suggesting a practical solution to the tenancy continuation.
• The applicant sought to rely on the Supreme Court decision in O'Meara v. Minister for Social Protection to argue that s. 39 is under-inclusive and should be extended to protect minor children.

Respondents' Arguments

• The State defended the constitutionality of s. 39, emphasizing its role in balancing landlord and tenant rights as a statutory provision, not conferring constitutional property rights.
• The State argued the applicant failed to properly plead discrimination on grounds of family status and criticized the procedural choice of judicial review over plenary proceedings.
• The State maintained that the differential treatment of minors is justified by legitimate policy objectives and the constitutional separation of powers.
• The respondents contended that minors are lawfully treated differently from adults, with restrictions and protections appropriate to their status, including in housing and maintenance matters.
• The State highlighted existing statutory protections and social welfare provisions for minor children of deceased parents, including accommodation arrangements under the Childcare Act 1991.

Notice Party's Arguments

The opinion does not contain a detailed account of the notice party's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Donnelly v. Ireland [2022] IESC 31	Procedural appropriateness of judicial review for constitutional challenges; burden of proof in Article 40.1 claims.	Confirmed applicant was entitled to proceed by judicial review; emphasized burden of proof and presumption of constitutionality.
O'Meara v. Minister for Social Protection [2024] IESC 1	Under-inclusiveness in social welfare legislation and constitutional equality rights.	Applicant sought to analogize to this case to argue under-inclusiveness of s. 39; court distinguished the contexts and rejected the analogy.
O'Doherty and Waters v. Ireland [2022] IESC 32	Burden of proof in constitutional challenges and justification of legislative distinctions.	Supported the principle that applicants must discharge a substantial burden to prove unconstitutionality.
Meath County Council v. Murray [2017] IESC 25	Article 40.5 and the inviolability of the dwelling.	Confirmed that lawful termination of tenancy under statute does not breach Article 40.5.
Ghailan & ors v. Spain (App. No. 36366/14, 2021)	Article 8 ECHR does not confer a right to housing per se.	Supported rejection of applicant's reliance on Article 8 ECHR for a right to continue residing in the tenancy.
Yordanova & ors v. Bulgaria (App. No. 25446/06, 2012)	Right to a fair hearing regarding eviction under Article 8 ECHR.	Distinguished as the applicant's right to an impartial hearing was not in issue; balance struck by s. 39 upheld.
FJM v. United Kingdom (App. No. 76202/16, 2018)	State's margin of appreciation in balancing housing rights under ECHR.	Supported the State’s discretion in legislating tenancy termination provisions.
Michael and Emma [2021] 3 I.R. 528	Recognition of indirect discrimination under Article 40.1 of the Constitution.	Applied to analyze whether s. 39's exclusion of minors constitutes unconstitutional indirect discrimination.
Re Article 26 and the Illegal Immigration (Trafficking) Bill 1999 [2000] 2 I.R. 360	Indirect discrimination and justification under Article 40.1.	Used to clarify that indirect discrimination must be justified by legitimate objective reasons.

Court's Reasoning and Analysis

The court began by outlining the statutory framework of s. 39, which permits certain adults connected to a deceased tenant to succeed to a Part 4 tenancy but excludes minors under 18. The applicant, a minor, sought to challenge this exclusion as unconstitutional discrimination under Article 40.1 and other constitutional and human rights provisions.

The court examined the nature of the rights conferred by s. 39, emphasizing that tenancy rights are statutory, not constitutionally protected property rights. It rejected claims under Articles 40.3, 40.5, 42A, and the ECHR, finding no basis for extending constitutional protection to the continuation of tenancy by a minor child.

In analyzing Article 40.1, the court recognized that s. 39 results in indirect discrimination against minors and children of one-parent families but highlighted that indirect discrimination can be justified if based on legitimate policy objectives. The court applied established principles requiring the challenger to discharge a heavy burden of proof to show that distinctions drawn by legislation are arbitrary, capricious, or irrational.

The court noted the societal and legal rationale for treating minors differently from adults, including protections from adult responsibilities and the State's role in providing maintenance and accommodation through guardians or social welfare. It found that the exclusion of minors from tenancy succession under s. 39 is not irrational but consistent with these principles and the separation of powers, leaving policy decisions to the legislature.

The court rejected the applicant's suggestion that the legal guardian could acquire the tenancy on the minor's behalf due to lack of clarity and practical difficulties. It concluded that existing statutory and welfare provisions adequately protect minor children’s interests without extending tenancy rights.

Holding and Implications

The court REFUSED the application challenging the constitutionality of section 39 of the Residential Tenancies Act 2004.

This decision means that minors under 18 are not entitled to succeed to a Part 4 tenancy upon the death of the tenant parent under current law. The ruling confirms the State’s discretion in legislating tenancy succession and the constitutional acceptability of differential treatment of minors versus adults in this context. No new precedent altering the balance of rights between tenants, landlords, and minor children was established. The court indicated that existing social welfare and guardianship frameworks provide appropriate protection for minor children’s accommodation needs.