Supreme Court of Ireland Decisions

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2022:000139

[2024] IESC 1

O'Donnell C.J.

Dunne J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

Collins J.

 

 

Between/

JOHN O'MEARA, JACK O'MEARA (A MINOR SUING BY HIS FATHER AND NEXT FRIEND JOHN O'MEARA), THOMAS O'MEARA (A MINOR SUING BY HIS FATHER AND NEXT FRIEND JOHN O'MEARA) AND AOIFE O'MEARA (A MINOR SUING BY HER FATHER AND NEXT FRIEND JOHN O'MEARA)

Applicants/Appellants

-and-

THE MINISTER FOR SOCIAL PROTECTION, IRELAND AND THE ATTORNEY GENERAL

Respondents

Judgment of Mr Justice O'Donnell, Chief Justice delivered on the 22^nd day of January, 2024.

1.             I adopt the statement of the facts of this case set out in the judgment of Mr Justice Woulfe. The appellants in these proceedings are a father and his three children, who lost their life partner and mother respectively in 2021. The first appellant, John O'Meara, commenced a relationship with Michelle Batey in or around 2002. They lived together and had three children, the second to fourth appellants, born in 2008, 2010 and 2007 respectively. It is not in dispute that they lived together in a committed, stable, and long-term family unit until the sad death of Ms Batey in 2021, from cancer and COVID-19. As the Attorney General acknowledged in these proceedings, on any ordinary understanding of the term, Mr O'Meara, Ms Batey and their children were a family, the appellants were and continued to be a family after her death and, indeed, were a family at all relevant times for the purposes of these proceedings.

2.             Mr O'Meara and Ms Batey never got married largely because her experience of her parents' relationship (who were married and subsequently separated) was such that she did not wish to replicate that for herself, her partner, and her children. However, when she became significantly ill with breast cancer and her condition deteriorated, she and Mr O'Meara discussed marriage. Tragically, she contracted COVID-19, and died before it was possible to make any arrangements for a marriage.

3.             Mr O'Meara made an application for Widow's, Widower's or Surviving Civil Partner's (Contributory) Pension ("WCP") payable under Chapter 18 of Part 2 of the Social Welfare Consolidation Act, 2005 (as amended) ("the 2005 Act"). As is set out in the comprehensive judgment of the High Court ([2022] IEHC 552 (Unreported, High Court, Heslin J., 7 October, 2022)), WCP has a long history. It was originally introduced for widows in 1936, under the Widows and Orphans Pensions Act, 1935. It was extended to widowers in April, 1994 by the Social Welfare Act of that year. Finally, in 2010 it was extended to surviving civil partners by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 ("the 2010 Act").

4.             While both the amount and the details of the benefit have altered over time, the essential structure remains. If either spouse or civil partner had made sufficient social insurance contributions (PRSI), the surviving spouse will become entitled to WCP, which is not a means tested benefit. If there are dependent children, the rate of payment is increased. In this case, both Mr O'Meara and Ms Batey had made sufficient PRSI contributions to qualify if they had been married or civil partners.

5.             The pension amount has changed from time to time, but for present purposes it is accepted by the State parties that, as at 6 January 2023, a qualifying surviving spouse would be entitled at a minimum to a pension of €225.50 per week, and an additional €50 for each dependent child over 12; the appellants contend that Mr O'Meara would be entitled to slightly more, but nothing turns on that for present purposes. The 2005 Act also permitted additional payments to be made in the case of surviving spouses living alone where the person has attained the age of 80 years or where the person is of pensionable age and is ordinarily resident on an island. In all cases, the qualified person and recipient is the surviving spouse or civil partner.

6.             Section 124(1) of the 2005 Act as inserted by s. 17(4) of the Social Welfare and Pensions Act, 2010, provides that "[s]ubject to this Act, a widow, widower or surviving civil partner shall be entitled to a pension...". This simple provision lies at the heart of this case. WCP is clearly confined to those who were married or civil partners. Both "widow" and "widower" are given a particular definition in s. 123. In the case of a woman, "'widow' means a widow or a woman who would otherwise be a widow but for the fact that her marriage has been dissolved, being a dissolution that is recognised as valid in the State". An equivalent provision applies in the case of men. It follows from this definition that s. 124 extends to divorced persons whose former spouse has died. Civil partners are now included in the same way. Section 124(2) excludes a payment on remarriage or entry into a civil partnership, and s. 124(3) disqualifies a widow, widower or surviving civil partner from receiving a pension "if and so long as he/she is a cohabitant". Cohabitant is, in turn, defined by the general definition section (s. 2) as inserted by s. 15 of the Social Welfare and Pensions Act, 2010, as meaning "a cohabitant within the meaning of s.172(1) of the Civil Partnership Act, 2010".

7.             Mr O'Meara's application for WCP was refused, unsurprisingly, on the grounds that he did not satisfy the definition of widow, widower or civil partner, and therefore, did not come within s. 124(1). He and his children now challenge that decision, and the validity of s. 124 on the grounds that it infringes their right to equality both under the Constitution and the European Convention on Human Rights ("the Convention"). The appellants identify as comparators: a qualifying widower and his family who would qualify for WCP on the death of a spouse and parent.

8.             The case was the subject of a comprehensive judgment in the High Court (supra). As that judgment records, the claim made was essentially that the provisions involved an impermissible discrimination against the family unit comprising of all the appellants contrary to Article 14, read together with Article 8 of the Convention and contrary to the equality guarantee contained in Article 40.1 of the Constitution. The argument placed particular reliance on two decisions of the UK courts: Re McLaughlin [2018] UKSC 481, [2019] 1 All ER 471, a decision of the Supreme Court of the United Kingdom, and the first instance decision of the High Court of England and Wales in R (Jackson) v. Secretary of State for Work and Pensions [2020] EWHC 183 (Admin), [2020] 1 WLR 1441. In particular, it was accepted that, as far as the Constitution was concerned, any differential treatment of Mr O'Meara by reference to his marital status was permissible, and that it was only the fact that children were involved that made the case stateable. The claim was dismissed in the High Court. Leapfrog leave to appeal to this Court was granted ([2023] IESCDET 25) on 20 February, 2023.

9.             On the opening of this appeal, this position - that the claim was confined to the position of the group including the children, and principally by reference to the Convention - was maintained initially. However, it became clear that the appellants' argument could not be maintained on this narrow basis, and that the logic of the argument being advanced might also require that the provisions of the legislation as applicable to Mr O'Meara alone be challenged. In the event, the appellants, at the invitation of the Court, sought and were granted permission to seek an adjournment to revise their written submissions to contend that s. 124 is repugnant to the Constitution on the basis that the O'Meara's are a Family for the purpose of Article 41 of the Constitution, and in doing so to argue that the statement of Walsh J. for this Court in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 ("Nicolaou"), that the Article 41 Family was limited to a marital family, was wrong and should be overruled or disavowed. The Court also invited the parties to address a series of questions in clarification of the issues raised. The parties delivered responses to those questions together with comprehensive written submissions and the Court heard further argument on the matter.

10.         The argument raised in this case is that the decision in Nicolaou should be overruled and in particular the statement in the High Court and Supreme Court judgments, that the Article 41 Family is limited to a family based on marriage (which I will refer to as "the Nicolaou Family statement"), should be expressly disavowed. The issue of the meaning of the Family in Article 41 arose for consideration and decision in Nicolaou because it was argued, faintly but clearly, that the plaintiff in that case was entitled to Article 41 rights as part of a Family. Although most closely associated with the judgment of Walsh J. for the Supreme Court, the conclusion that the Article 41 Family was a family based on marriage, was one assented to in all the relevant judgments in that case in the Divisional Court as well. Thus, at pages 643-644, Walsh J. found that the Family described in Article 41 is one that is limited to the family based on marriage:-

" It is quite clear from the provisions of Article 41, and in particular section 3 thereof, that the family referred to in this Article is the family, which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the law for the time being in force in the State."

11.         It is now said that this statement should be disapproved, and it should be held that the O'Meara's were at all times, a Family within the meaning of Article 41. It follows, it is argued, that the section excluding them from a benefit which would have been available if Mr O'Meara and his partner had been married, is, therefore, an unconstitutional discrimination between persons, in this case family units, who were treated equally by the Constitution (and were families for that purpose) and must therefore, be a breach of Article 40.1 of the Constitution.

12.              In the judgments they deliver, Woulfe and Hogan JJ. would accept this argument and overrule the Nicolaou Family statement. For reasons I will set out in due course, I consider that it is not necessary to address this issue to resolve this appeal, rather, I consider it helpful to address the question of the constitutional validity of s. 124 with the equality guarantee contained in Article 40.1 first, before turning to the Nicolaou issue.

The Equality Argument

The issue

13.         The Nicolaou argument, which occupied so much time in this case, might appear to be something of an unnecessary detour. The fundamental issue in this case is an equality challenge. Accepting as I do, that the case law establishes that the O'Meara's, individually and collectively, have constitutional rights, and that they are in many respects identical to a family where the parents are married, the question then becomes whether the distinction made in the provisions of s. 124 of the 2005 Act are justifiable on the basis that John O'Meara and Michelle Batey were not married.

14.                     It is important to acknowledge that it is not enough, on this limb of the argument, to simply point to the distinction the Constitution makes in respect of marriage, and argue that the Constitution recognises a difference in social function between married and non-married couples, and therefore any and all distinctions made on the basis of marriage are permissible. The concept of equality involves not only treating like cases alike, and unalike cases unalike, but also that where a differentiation is made, that it is made and justified by reference to the manner in which the comparators are unalike. It would not be possible, for example, to justify a provision which discriminated against marriage or a married couple by pointing to the fact that the Constitution identifies a married couple as different from an unmarried couple in Article 41.3. Any such discrimination would run counter to the distinction made in the Constitution, and could not therefore, be justified by reference to it. However, it seems to be accepted by the parties to this appeal that it is permissible to provide for differential legislative treatment on the basis of marriage. If so, reversal of the Nicolaou Family statement would not itself lead to a conclusion in favour of the Applicants in this case: it would remain to be decided if the differentiation made here on the basis of marital status was consistent with the equality guarantee.

15.         This case has tended to proceed on competing absolutist arguments. Either all provisions that make distinctions between married couples and unmarried couples are permissible or they are all constitutionally invalid. It should be said, however, that the Attorney General accepted that a differentiation such as this would not be justified in other areas, such as, for example, payment of child benefit or indeed as regards the generality of benefits under the 2005 Act. In my view, however, the position is more complex and nuanced and the analysis must be more fine grained. It is, in my view, manifest that it is permissible to distinguish on grounds of marital status, but also, that it does not follow that all such distinctions, particularly those consequential distinctions in respect of rights of families and children, will be consistent with the Constitution.

16.         It may be observed that the Convention, which has no direct equivalent of Articles 41, 42 and 42A, has been held to mean that States have a margin of appreciation to distinguish on grounds of marital status particularly in relation to social welfare benefits. Thus, in Shackell v. United Kingdom App. No. 45851/99 (ECHR, 27 April 2000), in circumstances very similar to the present case, the European Court of Human Rights rejected as manifestly unfounded a complaint that a refusal of a widow's payment, widowed mother's allowance and widow's pension, to a woman who had lived with her partner for 17 years before his death in an accident at work was contrary to the Convention. The Court was prepared to assume that the entitlement to a pension was a pecuniary right coming within Article 1 of Protocol No. 1, and that therefore, the Article 14 guarantee of equality was engaged. The argument is, therefore, almost identical to that arising in this case in the context of the Constitution.

17.         The Court referred with approval to an earlier decision of the European Commission on Human Rights, Lindsay v. UK App. No. 11089/84 (ECHR, 11 November 1986).  In Shackell the European Court of Human Rights acknowledged that Lindsay dated from 1986, which was then 14 years earlier, and accepted that there was now increased social acceptance of stable personal relationships outside the traditional conception of marriage. However, the Court reiterated the margin of appreciation available to Contracting States and noted "that marriage remains an institution that is widely accepted as conferring a particular status on those who enter it and, indeed, it is singled out for special treatment under Article 12 of the Convention. The Court considers that the promotion of marriage, by way of limited benefits for surviving spouses, cannot be said to exceed the margin of appreciation afforded to the respondent Government."

18.         It seems clear that it is not constitutionally impermissible to distinguish per se between marriage and a long-term relationship not least because the Constitution makes that distinction itself. At paragraph 39 of the judgment he delivers, Hogan J., as I understand it, expressly agrees that differential treatment on the basis of marriage is permissible. Not only does the Constitution refer specifically to marriage and impose upon the State an obligation to guard the institution with special care, (which arguably contemplates treatment which is different to and more advantageous than that afforded to other forms of relationships), but as discussed, it contains specific provisions applicable only to married couples. For almost 60 years the Constitution provided that no law could be enacted permitting a dissolution of marriage. Since 1995, the Constitution has no longer contained such a provision, but instead, contains provisions which specifically regulate the circumstances in which a marriage may be dissolved and notably requires that proper provision be made for the spouse and, where applicable, children, of such a marriage. No similar provision is included in the Constitution in relation to any other form of relationship. While marriage, even in the legal context, tends to be viewed through rose-tinted glasses, the inescapable fact is that marriage is a legal status achieved only when formalities specified by the State are complied with, and which cannot be varied, set aside or dissolved by the parties themselves without seeking and obtaining the permission of the State.

19.         Marital status is different from other possible discriminatory grounds which attract particular scrutiny. It is not an immutable characteristic linked to the essence of human personality, such as gender, race, ethnicity, or age. Nor is it necessarily the subject of prejudice, or and nowadays, stereotyping. Its distinctive characteristic is that it is a legal status freely chosen by the parties with knowledge that it involves a corpus of rights and obligations, burdens and benefits. It follows, that it is a status which may be rejected by individuals who do not wish to incur the obligations or obtain the benefits, or who simply do not want the State's involvement in what is an intimate and personal relationship. Some part of the protection and vindication of personal responsibility and autonomy guaranteed by the Constitution involves requiring the State to respect such choices.

20.         I do not think it is necessary to resolve the question of whether marital status is ever a ground of differentiation that would require the particularly close scrutiny O'Malley J. envisages at paragraph 188 of her judgment in Donnelly v. Ireland [2022] IESC 31, [2022] 2 ILRM 185 ("Donnelly"), or whether if it does, it is capable of more ready justification than other differentiations based on immutable characteristics vulnerable to prejudice and stereotyping. As stated at paragraph 193 of Donnelly, there can be a tendency towards an overly rigid taxonomy of the applicable standards of review. The analysis should not be allowed to become mechanical or formulaic. As was stated at paragraph 193 of the judgement in Donnelly:-

"It should be borne in mind that context is relevant here, and also that some grounds of discrimination, even within the core category of characteristics of human personality, are more likely to be offensive than others and thus require more intense scrutiny."

21.         It is unnecessary to address the issue further here because, in my view, the case can be approached, and resolved, by reference to the basic approach set out in Donnelly at paragraph 190, that is whether the differentiation challenged is "irrational, arbitrary, capricious or not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of."

22.         It is also to be remembered that social welfare provisions are matters where the Court has afforded the State a broad margin of appreciation because any particular provisions under scrutiny are only part of a larger legislative patchwork, and which involve broader decisions on raising revenue and spending it, which are generally considered to be a matter for the Executive and subject to specific scrutiny by the Legislature. The imposition of taxation and the conferring of benefits are matters peculiarly appropriate to the democratic decision of the legislative branch. Furthermore, measures which are challenged as under-inclusive, on the grounds that they do not extend the benefit to parties alleged to be similarly situated to those in receipt of the benefit, may be easier to justify than those which are over-inclusive, and which apply their provisions, particularly burdens, to persons not properly within the targeted group. This is because there is some benefit in the Legislature being allowed to experiment and to proceed incrementally. Furthermore, and generally, provisions conferring a benefit are not to be found invalid simply because those benefits were not provided more broadly. In the field of taxation and social welfare, the State is generally entitled to make broad generalisations which are subject to democratic scrutiny, and which will not be set aside simply because a more precisely targeted provision could be envisaged so long as the differentiation is not one going to the essence of the human personality protected by Article 40.1.

23.         This is well explained in Donnelly at paragraph 163 of the judgment:-

"It is also clear from the authorities that it is particularly necessary for the courts to respect the role of the legislature in enacting laws concerned with social and revenue matters, because the raising and spending of public money involves policy decisions that are more appropriate to the elected members of the legislature than to the courts. The point is that the allocation of different roles by the Constitution means that the courts must be particularly aware of the danger of usurping the task of the legislature and imposing their own choices in the areas under consideration. This danger is, I think, more likely to arise in a case such as the instant appeal, where the claim is based purely on a claim to equality and the appellants do not suggest that any other right has been interfered with. I would not see the distinction between different types of legislation as giving rise to a separate test with different criteria, but it is one of the significant factors that determines the level of intensity of the court's scrutiny."

24.         However, as was made clear by both the language and decision in Donnelly itself, none of this means that provisions in the field of taxation or social welfare are beyond scrutiny on equality grounds. In Railway Express Agency v. New York (1949) 336 U.S. 106 ("Railway Express"), Justice Jackson said, that there may be significant benefit to the application of equality analysis rather than a direct challenge on due process grounds:-

"Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable.

Invocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally".

25.         The test to be applied in this case is that articulated in Donnelly at paragraph 192:-

"...the challenge can only succeed if the legislative exclusion is grounded upon some constitutionally illegitimate consideration, and thus draws an irrational distinction resulting in some people being treated as inferior for no justifiable reason. 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'."

26.         It is necessary therefore, to look again, and more closely, at the statutory provisions involved in this case. 

The legislative framework

27.         Section 124(a) of the 2005 Act now provides that a widow, widower or surviving civil partner shall be entitled to a pension where the contribution conditions are satisfied (as they were in this case). Section 124(2) provides that:-

"A pension shall not be payable to a widow or widower or surviving civil partner for any period after his or her marriage or remarriage, or his or her entry into a civil partnership or a new civil partnership".

Thus, WCP terminates on remarriage or a new civil partnership.

28.         Section 124(3) provides that any widow, widower or surviving civil partner shall be disqualified from receiving the pension, if and so long as he or she is a cohabitant. Section 124(4) provides, in effect, that where a person entitled to the pension remarries (and therefore, loses the pension under s. 124(2)) and where the second spouse also dies, but the person is not entitled to a widow's pension in respect of the death of that spouse because the contribution conditions are not satisfied or the pension is at a rate below the level of the original pension, then the original pension payment will resume as if the person had never remarried.

29.         "Cohabitant" as already mentioned, is defined in the general definition section (s. 2) of the 2005 Act as "a cohabitant within the meaning of section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010". Section 123 of the 2005 Act which contains the interpretation provisions specifically relevant to WCP includes the notable provision that the definition of "spouse" (and the consequential definition of "widow" and widower") includes a party to a marriage that has been dissolved. Accordingly, WCP is payable in respect of the death of a divorced spouse. Indeed, given the provision referred to at paragraph 28 above, whereby benefit which is removed on remarriage (or cohabitation) is restored upon death of the second spouse, if that death is not qualifying by reason, for example, of a lack of contributions. A surviving spouse in that situation would qualify for WCP, not by reason of the death of their spouse to whom they were married, but because of the death of someone to whom at the time of death of both the divorced former spouse and their lawful spouse they were, by definition, not married. Finally, s. 126 provides that the weekly rate of the pension shall be as set out in column (2) of Part 1 of Schedule 2 and provides that the weekly rate of pension shall be increased by the amount set out in respect of each qualified child under 12, normally residing with the beneficiary, and an increased amount for each qualified child over the age of 12 also residing with the beneficiary. Section 127 also provides for increases in the pension when the beneficiary has reached pensionable age and is living alone or is ordinarily resident on an island or has attained the age of 80.

30.         First, it is relevant in my view, that the payment is a social welfare benefit payable in the event of the occurrence of an event giving rise to a recognised need for support. This cannot be easily characterised as a consequence of a status deliberately chosen. In general, it is notable that social welfare provisions, unlike succession or taxation rules, do not tend to distinguish between married couples and cohabitants. In the case of s. 124, bereavement and the impact of the death of a partner, both emotional and financial, is not in any way different whether the survivor is married or not. The loss of a loving parent has the same impact on children, whatever their parents' marital status. Second, it is also relevant, in my view, that this is a contributory benefit, and a married couple will get the benefit of the fact that contributions were made by one or both of them, whereas an unmarried couple making the same contributions will not. Here, Mr O'Meara (and, as it happens, Ms Batey) had made the same contributions in PRSI as a widower obtaining WCP and suffered the same loss (emotional and financial), but would not receive the same benefit.

31.         Furthermore, WCP is increased when there are dependent children, and quite substantially. This is not in any sense to suggest that, as a matter of law, WCP is a payment to or for the children. It is an established principle in the field of social welfare more generally that the payment is made to the beneficiary and only them, and may be used by them for any purpose. That is true of WCP as it is true of other benefits payable under the 2005 Act, including child benefit. The increased payment is, however, a recognition that the survivor may not just be a spouse, (or civil partner) but is also a parent and, in such circumstances, the survivor will have the additional costs and expenses associated with maintaining any dependent children. In such circumstances, the increased payment is clearly intended to benefit the children, even if indirectly. These costs, and the loss to the surviving parent and the children arising from the death of the deceased parent, do not differ by reference to the marital status of the parents.

32.         In this regard, the jurisprudence which I will discuss in more detail later, is also relevant. The Constitution as interpreted, recognises the rights of all children, and obligations of their parents, irrespective of the status of their parents. In this respect, there is no distinction, and certainly no relevant constitutional distinction, between children in a long-standing non-marital unit such as the O'Meara's, and those of a comparable family whose parents were married. Significantly, nor is there any difference in the duties and obligations the parents married or unmarried owe to their dependent children. In the light of the essential equality of children under the Constitution vis-à-vis their parents, and the rights which they all have to look to their parents for support, both emotional and financial, and the loss which they all suffer on the death of a parent, the stark differential treatment in the 2005 Act requires particular justification.

33.         Perhaps particularly significantly, the differentiation is not even made on the basis of present marital status. The section refuses any payment by reference to a child of a non-marital couple no matter how well established they were at the time of death, but permits it in the case of children of a divorced couple who were, by definition, not married at the time of the death of one party and who may indeed have gone their separate ways many years before. Such a couple are by definition not married at the time of death, and the fact that they were married at one time is not in my view a sufficient basis for treating them as parents differently and better than otherwise comparable parents who had never married at all, and may have been together at the time of the death of one partner.

34.         Furthermore, the provision itself recognises marriage and cohabitation as similar but only to preclude payment to a widow or widower in the event of subsequent cohabitation. This recognises the support cohabitants provide to each other, but does so only negatively. This is, perhaps, particularly telling. WCP addresses a particular need: the financial loss experienced by a spouse and children on the loss of a partner and parent, who may have been a financial provider for the family or did work that will otherwise have to be accounted for. It also recognises the desirability that the surviving spouse should be relieved of the financial obligation to work in the period following the death of a spouse and parent. But the section also recognises that some events may reduce that need and accordingly the necessity of payment; in that respect, it treats remarriage or subsequent cohabitation as essentially similar. The Act recognises that an unmarried partner supplies the same benefits to a partner and children as a married partner does for the purpose of removing the benefit, but does the opposite when granting it.

35.         Accordingly, viewed in this way, I would conclude that insomuch as the section permits payment of WCP to be made to a surviving spouse with dependent children, but refuses any such payment to a surviving partner of a non-marital relationship with dependent children, the section makes a distinction that is arbitrary and capricious and which is not reasonably capable when objectively viewed in the light of the social function involved of supporting the precise classification challenged and therefore fails to hold them as parents, equal before the law. The reality is that WCP has developed over time in a piecemeal fashion, starting from a view of society and family arrangements that no longer applies, and it is perhaps unsurprising that it cannot now be said to conform to any clear and justifiable principle.

36.         The State respondents rely, however, on the authority of a recent decision of this Court, Michael and Emma v. The Minister for Social Protection, The Attorney General and Ireland [2019] IESC 82, [2021] 3 I.R. 528 ("Michael and Emma"). The case concerned the provisions of s. 246(5) of the 2005 Act (as amended) which provided that a person who did not have a right to reside in Ireland would not be regarded as habitually resident here for the purposes of the Act. This meant that in the particular case, Child Benefit was not payable to asylum seekers even though, in some cases, their children might be Irish citizens. The decision has some superficial points of comparison with this case. A claim was made by the children in respect of a benefit payable to the parents. It was held that it was permissible to distinguish between the children of asylum seekers and the children of parents habitually resident in Ireland because of the status of their parents. A challenge to this provision was rejected by the European Court of Human Rights in X v. Ireland App. Nos. 23851/20 and 24360/20 (ECHR, 22 June 2023). It is said therefore, the same reasoning can apply here, where a differentiation was made on the basis of the marital status of the parent recipient of the benefit.

37.         Leaving aside for the moment the fact that for reasons already explored, the differences in this case are not solely based on marital status, the analogy does not hold up in my view. In this case, I would find that the differentiation between parents here is impermissible, since, contrary to the State's argument, it is not supported by the Constitution, which while upholding marriage, has also been held to recognise the consequent essential equality of all children in themselves, and in their rights vis-à-vis their parents, and the essential equality of all parents in respect of the duties they owe their children. It cannot be said, therefore, that in that respect there is a sufficient distinction to justify the difference of treatment. In Michael and Emma, however, the differentiation is one that can be justified. It is a distinction between those who are habitually resident, and those who are only entitled to be within this State on a very limited basis. The distinction is made in respect of social welfare benefits which clearly has a rational relationship to a difference in immigration and residency status. It can be said that as between citizen or habitually resident parents and asylum seeker parents there is no distinction between them as parents, but there is a legitimate distinction between them having regard to their immigration status and right to be in the State which is, moreover, relevant in the context of social welfare.

38.         Accordingly, I would conclude that s. 124 insomuch as it excludes the appellants from the benefit provided by it fails to comply with the obligation in Article 40.1 to treat all human persons equal before the law. I will address the question of remedy and the appropriate order at the conclusion of the judgment.       

European Convention on Human Rights

39.         The appellants' original arguments relied heavily on two UK cases under the Human Rights Act, 1998. In Re McLaughlin [2018] UKSC 48, [2019] 1 All ER 471, the UK Supreme Court, by a majority, held that provisions of the Social Security Contributions and Benefits (Northern Ireland) Act, 1992, which applied to deaths which occurred prior to 2017, and which excluded unmarried persons from widowed parents' allowance, was incompatible with Article 14 of the Convention when read with Article 8. Subsequently, in R (Jackson) v. The Secretary of State for Work and Pensions [2020] EWHC 183 (Admin), [2020] 1 WLR 1441 ("R (Jackson)"), the reasoning in McLaughlin was applied to the benefit system which replaced widowed parents' allowance. In that case, the High Court of England and Wales held that the provisions of s. 30(4)(a) of the Pension Act, 2014, which provided for Higher Rate Bereavement Support Payment was also incompatible with Article 14 of the Convention read with Article 8.

40.         Re McLaughlin was a case from Northern Ireland. Ms McLaughlin had been together with her partner for 23 years before he died, but they had never married because her partner had promised his first wife he would not remarry. They had four children, aged from 19 to 11, when Ms McLaughlin's partner died. Widowed parents' allowance was payable to a widow or widower when there were children of the marriage. Ms McLaughlin challenged her exclusion both from bereavement payment and widowed parents' allowance.

41.         In the High Court of Northern Ireland ([2016] NIQB 11), Treacy J. dismissed the claim for bereavement payment on the basis that the lack of a public contract between the claimant and her deceased partner, meant that they were not in a comparable position to that of a widow or widower who had been married. In other words, the marital status was a sufficient differentiation so that the difference of treatment between Ms McLaughlin and a comparator widow, was not discriminatory. However, at paragraph 70, Treacy J. considered that with regard to widowed parents' allowance, where the benefit is conferred due to parentage and co-raising of three children, rather than marriage, refusal would not be justified:-

"This is because the responsibilities of one parent in relation to their children after the death of their partner do not arise from and are not necessarily connected to the public contract that they made at the time of marriage/civil partnership. Parents are under the same or similar financial obligations regarding the maintenance of their children irrespective of whether they are married, in a civil partnership or cohabiting".

In that respect Ms McLaughlin was, he considered, comparable to a widow and the differential treatment was an impermissible discrimination.

42.         The Court of Appeal of Northern Ireland ([2016] NICA 53) reversed the decision of the High Court, and the claimant obtained leave to appeal to the UK Supreme Court, which proceeded on the issue of the refusal of widowed parents' allowance alone. Baroness Hale approved the analysis of Treacy J. (paragraph 27) which seems to suggest that the distinction made by him (set out at paragraph 26 of the judgment of Baroness Hale) was correct - a differentiation between spouses and unmarried partners on the basis of marital status is permissible but a differentiation between parents on that basis, was not.

43.         Lord Mance delivered a concurring judgment with whom the other members of the majority also agreed. He acknowledged the strength of the reasoning in the dissent of Lord Hodge, and clearly saw the case as a close decision. Lord Mance was, however, persuaded that while widowed parents' allowance was in law a payment to a widow or widower or surviving civil partner, the clear purpose of the allowance was to continue to cater for the interests of any relevant child (paragraph 49). A policy in favour of marriage or civil partnership could constitute justification for differential treatment when children were not involved, but could not do so in relation to a benefit targeted at the needs and well-being of children (paragraph 52).

44.         Lord Hodge, dissenting, took the view that the benefit, which in the UK was dependent on the deceased's contribution alone, and was not means tested, was, therefore, focused on the nexus between the survivor and the deceased. He saw the payment as replacing income earned by the deceased, and allowing the survivor the option of not working or working less after bereavement, notwithstanding his/her current and future financial responsibility for children. Thus, it was a payment to a survivor to permit them the option of not working immediately after bereavement, and the increased payment in respect of each dependent child, only reflected the fact that the survivor would require more to permit that objective to be achieved. On this analysis, the differentiation made was on the basis of the marital status of the survivor, and that differentiation had been held not to infringe Article 14 of the Convention in a series of cases of the Strasbourg Court and Commission namely Burden v. UK (2008) 47 EHRR 38, Lindsay, and in this specific context, Shackell.

45.         R (Jackson) applied the analysis of the majority in McLaughlin to the regime which replaced widowed parents' allowance in the UK with effect from 2017. The support provided was more limited, and focused on the period after bereavement. Bereavement Support Payment ("BSP") was payable to a surviving spouse or civil partner. Higher Rate Bereavement Support Payment ("HRBSP") was payable, as the name suggests, at a higher rate, to a qualifying surviving spouse or civil partner, if he/she had a child or children. The case concerned a number of unmarried claimants with children, who challenged the refusal of HRBSP. Holman J. made a declaration that the provision was incompatible with Article 14 read in conjunction with Article 8.

46.         The appellants in this case understandably place heavy reliance on these decisions as providing a ready-made shortcut to a decision in this case. In light of the conclusion I have come to in this case on the application of Article 40.1 of the Constitution, and the fact that a declaration of incompatibility with the Convention would be a less effective remedy for the appellants, it might be thought unnecessary to address the Convention argument in any detail. In view of the fact that this case is in the nature of a test case, however, and that it will inform any revision of the benefit regime, it is necessary to address the Convention claim at least to a limited extent, although I do not think it is necessary to come to a concluded decision on the issue.

47.         The key difficulty faced by the challenge in McLaughlin in relation to the Convention, was the Convention jurisprudence and, in particular, the decision in Shackell. Baroness Hale considered first, that Shackell was a decision that the UK regime fell within a margin of appreciation, which was particularly broad in cases involving general measures of economic and social strategy. However, she considered that the margin of appreciation had no application in national law (paragraph 34), it was for the domestic courts to decide which among the domestic institutions was most competent or appropriate to carry out the necessary balancing exercise citing in this regard, Re G Adoption (Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173 (also referred to as Re P(A Child) (Adoption: Unmarried Couples)). In discrimination cases, it was the Court which should carry out this function. In addition, both Baroness Hale (paragraphs 38 and 39) and more explicitly Lord Mance (paragraph 49) considered the reasoning in Shackell and found that a differentiation based on marital status in respect of payment of benefit in respect of children, was not incompatible with the Convention, that reasoning did not sufficiently address the fact, as the Court saw it, that the clear purpose of the benefit was to benefit children, and accordingly, that Shackell was wrong, or at least should not be followed domestically.

48.         It is, I think, relevant that the route to the conclusion in McLaughlin no longer appears to be approved in the UK. In R. (on the application of Elan-Cane) v. Secretary of State for the Home Department [2021] UKSC 56, [2023] AC 559, the UK Supreme Court reaffirmed that domestic courts should not go further than they could be confident the European Court of Human Rights would go (R. (on the application of AB) v. Secretary of State for Justice [2021] UKSC 28, [2022] AC 487). Furthermore, at paragraph 108 of the judgment, Lord Reed firmly disapproved the dicta in Re G which were said to be "(1) best understood to have been obiter, (2) are based upon a misunderstanding of the nature of the margin of appreciation doctrine, (3) are difficult to reconcile with the structure and purpose of the Human Rights Act, (4) encroachment upon Parliamentary sovereignty which Parliament is unlikely to have intended, (5) undermine legal certainty, and (6) are inconsistent with the prevailing approach of the House of Lords and this court both prior and subsequent to that decision". Those considerations apply with, if anything, greater force in this jurisdiction because, as noted by Lord Reed at paragraph 88, the European Convention on Human Rights Act, 2003 in this jurisdiction by ss. 2, 3 and 5 "explicitly defines the domestic obligations which it imposes by reference to compatibility with the state's obligations under the Convention".

49.         It is not possible, therefore, to adopt McLaughlin as a shortcut to a decision in this case. I do not consider that R (Jackson) adds to the McLaughlin analysis or places it on any firmer footing. Indeed, it is arguable that that case does not address the significance of the fact the HRBSP was not a separate benefit but was payment of enhanced benefit support to a surviving spouse when there were dependent children, and could not be so characterised as a payment to or for the children. If the Convention argument were to be pursued to a conclusion, a number of issues would require to be analysed, such as whether Article 8 is engaged so as to engage Article 14 in turn, and thereafter whether this Court, in the absence of direct authority, and notwithstanding the decision in Shackell, could nevertheless be sufficiently confident of the direction of the development of Strasbourg authority to come to a conclusion that s. 124 was incompatible with the Convention. That in turn would require a more extensive survey of the more recent case law than was conducted in this case. For these reasons, while I have found the judgments both instructive and helpful in the analysis of this case, and have come to a similar conclusion in my analysis of the validity of the section having regard to the Constitution, I do not consider that the Court can at this point make a declaration of incompatibility of s. 124 of the 2005 Act (as amended) with the Convention and would reserve that issue until it arose in a case where it was necessary to decide it.

The Nicolaou argument

When may a court depart from previous authority?

50.         It is now well known that the Supreme Court is free to depart from its previous decisions: Attorney General v. Ryan's Car Hire Limited [1965] I.R. 642 ("Attorney General v. Ryan's Car Hire Ltd."). However, it will not accept every invitation to do so, and in particular will not do so merely on the basis that a subsequent court considers the decision is or may be wrong (Mogul of Ireland v. Tipperary (NR) C.C. [1976] I.R. 260) ("Mogul"). Although the principle does not apply with the same force in constitutional matters because there is less scope for the principle of communis error facit ius, but that even in those cases seeking to overturn an interpretation of the Constitution, the Court would be cautious about accepting an invitation to overrule a previous decision (DPP v. JC [2015] IESC 31, [2017] 1 IR 417 ("JC"), at paragraph 490, and Jordan v. Minister for Children and Youth Affairs [2015] IESC 33, [2015] 4 I.R. 232). This much is well known, but the considerations and values underlying these principles deserve some further consideration.

51.         The common law system is based upon the system of binding precedent, the principle of stare decisis is not an historical oddity of the common law; it is instead a fundamental component of the rule of law in any common law system. It normally provides certainty and clarity, which are important components in the rule of law, and which permit the other actors, whether the Oireachtas in the case of legislation, or the People, to know what it is the law is, and to act accordingly. This point was made recently by this Court, in Re Article 26 of the Constitution and In the Matter of the Judicial Appointments Commission Bill 2022 [2023] IESC 34, at paragraph 11:-

"... this means the Constitution has created a society governed by the rule of law, because it is principally through the enactment of legislation duly passed by a majority in a democratically elected Oireachtas that law is made for the State in accordance with Article 15.2.1°. This in turns means that citizens are entitled to regulate their affairs by reference to legislation enacted by the Oireachtas and, where applicable, by the corpus of common law and pre-1937 legislation carried over by Article 50".

52.         In the ordinary way, therefore, the operation of the system involves the Court stating definitively, what the law is (whether common law, statutory or constitutional), and allowing the Oireachtas in the case of legislation or common law, and the People in the context of the Constitution, to consider if they are content with the outcomes that the law as so interpreted produces, and if so, to build upon it, and if not, to qualify it or perhaps change it entirely.

53.         The principle is applicable in the field of constitutional law, precisely because it provides that degree of certainty and clarity, which is a component of the rule of law. In Jordan at paragraph 215, I said that "... the doctrine of precedent is itself part of the administration of justice contemplated and required by the Constitution, and provides qualities of certainty and predictability which are important and indeed vital parts of that system". In the following paragraphs, I observe that the power to declare an act unconstitutional or promulgate a binding interpretation of the Constitution is a weighty power and it is an appropriate recognition of the significance and reach of that power to approach the task with caution and humility of which the doctrine of precedent is one part. The accretions to the Constitution by the process of constitutional interpretation are an important aspect of the Constitution and its capacity to perform its function over time. The function of judicial review, first introduced in Irish law in Article 65 of the Irish Free State Constitution, and now contained in Article 34.3.2° of Bunreacht na hÉireann, requires the courts to review the decisions of democratically elected legislatures, if challenged. It is important that any such decision is an exercise in legal and judicial, but not political, judgment. Alexander Hamilton justified the power of judicial review by courts in the Federalist Papers No. 78, but observed that "[t]o avoid an arbitrary discretion in the courts, it is indispensable they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them".

54.         The starting point, therefore, is that the Court is, for good reason, bound by precedent. In 1965 in Attorney General v. Ryan's Car Hire Ltd., this Court decided that it was entitled to depart from its previous decisions. The circumstances in which to do so in general, were addressed by Henchy J. in Mogul. He observed that the Court in Attorney General v. Ryan's Car Hire Ltd. and The State (Quinn) v. Ryan [1965] I.R. 70, had expressed its power to depart from a previous decision but only for the most compelling reasons, and where it was clearly of an opinion that an earlier decision was erroneous. As Henchy J. put it:-

"A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least be clearly of opinion that the earlier decision was erroneous. ... it was made clear ... that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies...".

55.         As already observed, there is less scope for the maxim communis error facit ius in the context of constitutional law, but it is clear that the general proposition in Mogul remains accurate and important for the reasons already set out. The decision in JC is a relatively recent example of this Court overruling its previous decision in DPP v. Kenny [1990] 2 I.R. 110 ("Kenny"). Kenny was a decision binding on all courts, and its impact was significant. It was, moreover, one inherently less likely to receive gradual incremental consideration, since of necessity decisions wrongly excluding evidence did not easily come before the appellate courts. On the view taken by the majority in JC, the reasoning in Kenny was inadequate and the decision itself appeared to overrule an earlier decision without addressing the Mogul criteria. The decision in Kenny was, in the view of the majority, clearly wrong and was required to be reversed in order that the law applied in all other courts gives effect to the correct interpretation of the Constitution.

56.         It seems to me that it follows from the considerations set out, and the caution with which a court should approach the question of whether a previous binding authority should be overruled, that it is a basic initial requirement that it be demonstrated that it is necessary to do so in order to decide the particular case or any similar case. This is how the question may arise for decision. For example, in Mogul, the claimant sought consequential loss for malicious injuries. The previous Supreme Court had decided in Smith v. Cavan and Monaghan County Councils [1949] I.R. 322, that consequential loss was not available pursuant to s. 135 of the Grand Jury (Ireland) Act, 1836. That decision was treated as effectively a precedent binding upon the Supreme Court and accordingly, if the applicant was to succeed, it had to persuade the Court to overrule Smith's case.

57.         There are, in my view, a number of formidable reasons why the Court should not adopt the course of declaring that the Nicolaou Family statement was wrong and should be overruled. In summary, however, it can be said that I do not consider that it is necessary to do so to resolve this case: at a minimum, I consider that the Nicolaou Family statement has at least a strong claim to be the correct interpretation of the Constitution, says what it has been understood to say, and what it has repeatedly been held to mean, and cannot at a minimum, be said to be clearly wrong. Finally, the Nicolaou Family statement has in turn become embedded in the statutory and constitutional law of the State, to the point where it cannot, in my view, be removed by judicial decision without consequences that cannot necessarily be foreseen or controlled by any such decision. These are not mere quibbles standing in the way of some more clear-sighted and sympathetic approach to the Constitution or the position of non-marital families. On the contrary, they are matters of significant detail, nuance and constitutional principle. It is, therefore, unfortunately, necessary to consider these matters in some further detail.

The Nicolaou Family statement

58.         While the focus of the debate and analysis has been the passage in the judgment of Walsh J. for the Supreme Court set out at paragraph    10 above, it is worth observing that similar statements are contained in all the judgments delivered in this case, including in the Divisional Court. See, for example, Murnaghan J. at page 590 of the report, Teevan J. at page 602 quoting Gavan Duffy J. in Re M an Infant [1946] I.R. 334, ("Re M") at page 604, and at page 622 Henchy J., for his part, said bluntly "Article 41 deals with only one kind of family, namely a family founded on the institution of marriage". Henchy J. further stated that Article 41.1.1° accords the recognition of the State to such a family as:-

"the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law"; Article 41.1.2° gives the guarantee of the State to protect it in its Constitution and authority, as the necessary basis of social order and is indispensable to the welfare of the nation and the State. I am satisfied that no union or grouping of people is entitled to be designated a family for the purposes of the Article if it is founded on any relationship other than that of marriage. If the solemn guarantees and rights which the Article gives to the family were held to be extended to units of people found in extra marital unions, such interpretation would be quite inconsistent with the letter and the spirit of the Article. It would be tantamount to recognition of such units "as the necessary basis of social order and is indispensable to the welfare of the nation and the State" (Article 41.1.2°). For the State to award equal constitutional protection to the family founded in marriage and the "family" founded on an extra marital union would in effect be a disregard of the pledge which the State gives in Article 41.3.1° to guard with special care the institution of marriage."

59.         It is now said that these statements should be disapproved, and it should be held that the O'Meara's were at all times a Family (capitalised) within the meaning of Article 41. It is argued that s. 124, which excludes them from a benefit which would have been available if Mr O'Meara and Ms Batey had been married, is, therefore, an unconstitutional discrimination between persons, in this case family units, who are, on this argument, treated equally by the Constitution, and within the definition of Family for Article 41, and must therefore, be a breach of Article 40.1 of the Constitution.

60.         I admit to some frustration that this question has loomed so large in this case. The fundamental argument made is that the exclusion from WCP is discriminatory, whether by reference to Article 40.1 of the Constitution, or Article 14 of the Convention. The discussion set out earlier, and the conclusion to which I have come, itself demonstrates that it is possible to reach a conclusion in this case, that the appellants' claim can succeed, without the detour through Nicolaou and the surrounding case law and commentary. Therefore, it is plain that it is not necessary to decide this issue in order to resolve this case. Furthermore, as I understand it, in the judgment he delivers, Hogan J. accepts that, even if the Nicolaou Family statement is overruled, it would remain permissible under the Constitution to make distinctions based on marriage, and therefore, between marital and non-marital families, even if both are considered to come within the definition of the Family in Article 41. Accordingly, on this route, it would still be necessary to address the question of whether such a differentiation is permissible in this case. If this is correct, then the considerations set out above counsel strongly against going further. If there is a legitimate question as to the correctness of the Nicolaou Family statement, then that should, in my view, await a case in which it is necessary to decide it in order to resolve the case. However, in light of the judgments delivered by Hogan and Woulfe JJ. with which, on this point, I respectfully disagree, and the extensive argument in this case, I consider that this judgment should proceed to address the substance of the issue of the correctness of the Nicolaou Family statement.

Distinguishing between the Nicolaou Family statement and the substantive decision in Nicolaou

61.         It is important to distinguish between the Nicolaou Family statement and the decision in Nicolaou. I can agree that Nicolaou was wrongly decided, or at least that the route to the decision was wrong and is a blot on Irish constitutional jurisprudence. It is, however, important to be clear about the reasons why that is so. The case attracted criticism almost from the moment it was decided. That was because the Court found that s. 16(1) of the Adoption Act, 1952 ("the 1952 Act") did not offend the Constitution when it effectively excluded natural fathers from any involvement in, or indeed, knowledge of an adoption (which had indeed occurred in Nicolaou's case) when it permitted not just the natural mother but a range of other persons, including clergy, to be consulted. The provision in issue has long since been amended as have provisions showing similar legislative prejudice against natural fathers and their children: see, for example, s. 6A of the Guardianship of Infants Act, 1964, as inserted by s. 9 of the Status of Children Act, 1987, and the provisions of s. 4 of the Children's Act, 1997, s. 3 of the Protection of Children (Hague Convention) Act, 2000 and s. 43 of the Children and Family Relationships Act, 2015. If there was any attempt to re-enact any such provision or introduce other legislation which similarly excluded natural fathers from any possible say in the future of their children, then such provisions would be found unconstitutional, as a result of what, I hope, is a more sympathetic understanding of society and a more nuanced and sensitive interpretation of the Constitution.

62.         If it were necessary to formally overrule the decision of Nicolaou in this regard, and find that s. 16(1) of the 1952 Act, as it was enacted, is or was repugnant to the Constitution, and disavow the essential reasoning which led to the decision, I would be prepared to do so (although, it should be said, that in the particular case I would not necessarily agree that the finding of invalidity of the statute should lead inevitably to the quashing of the particular adoption order in circumstances where at the time of the Supreme Court decision, the child was six and a half years old, had been with the adoptive parents for most of her life, and had only been in the company of the plaintiff for the first four months of her life).

63.         However, I do not agree and cannot accept that the conclusion that an Article 41 Family, and which in its constitution and authority the State guarantees to protect, is the marital family, is wrong at least as an interpretation of the Constitution and certainly not so clearly wrong that it should now be overruled. Nor can I agree that the Constitution does not envisage that a distinction can be made between couples on the basis of marital status, or that any provision which distinguishes between married and unmarried people, or marital and non-marital family units, is necessarily per se unconstitutional.

64.         The argument for overruling or disapproving the Nicolaou Family statement is put very well in the written submissions advanced on behalf of the appellants and usefully elaborated upon in the judgments Woulfe and Hogan JJ. deliver in this case. It is asserted that the obviously desirable objective of securing explicit constitutional recognition for non-marital families as such, can be achieved by a detailed textual argument by reference to the language used throughout Articles 41 and 42 (and, Hogan J. would add, Article 44, and, somewhat tentatively, Article 45) of "family", "parents" and "children". In particular, it is argued that the terms in Article 42, "parent" and "child", are not limited to marital families, since no one suggests that the views of unmarried parents on education, upbringing, medical treatment etc. of their children can be afforded less weight than those of married parents, and thus arguing backwards that, the "Family" (capitalised) composed of parents and children in Article 42.1 must, therefore, also include a non-marital family. It must follow then that this is the same Family (capitalised) in Article 41 and that therefore, the Article 41 Family extends beyond the marital family. On this reading, Article 41.3 becomes a provision essentially supportive of the prohibition on divorce contained in the subsequent subsection of the Constitution until the Fifteenth Amendment of the Constitution in 1995 and which accordingly lost much of its meaning and force with the removal of the ban on divorce and a change to the provisions in relation to the recognition of foreign divorces. On this argument, Article 41.3, which undoubtedly links marriage and the Family, and was the central foundation of the interpretation advanced in Nicolaou and thereafter, should not stand in the way of a more modern, mature and sympathetic reading of the Constitution which, it is argued, is more in accordance with modern society.

65.         On this approach, one of three contentions advanced by the appellants must be correct as a matter of law:-

                        i.                    The Article 41 Family on true interpretation always included other family-type non-marital relationships, and the law took a wrong turn in rejecting counsel's arguments in Nicolaou and that reading should now be restored;

                      ii.                   Even if the Constitution did not bear such meaning in 1937 or 1965 (when Nicolaou was decided), the interpretation that the Article 41 Family includes other non-marital family type relationships is now the correct interpretation. Article 42A must be taken to have expressly altered the meaning of words such as "parent" and "children" which reinforces the reading of the Constitution backwards from Articles 42 and 42A with the consequence that "Family" in Article 41 must now be read as including non-marital families if the Constitution is to be read harmoniously. On this approach, the Nicolaou Family statement would not have been "wrong" at the time it was made, but could or should no longer be regarded as having any force; or

                    iii.                    The Constitution is in any event a "living tree" and must be interpreted in the light of modern conditions and prevailing social attitudes, and accordingly, the Court is free to depart from the prior Nicolaou interpretation of the Constitution and should adopt a new interpretation of the meaning of the word Family in Article 41 because it is now more consistent with modern social conditions.

66.         It is important to distinguish between these three approaches, not least because the first involves the contention that the Nicolaou Family statement was wrong when the case was decided. It follows that the second and third propositions, while leading to the same conclusion as to the law today, do so by routes which implicitly contradict the first. There may often be something to be said for there being strength in numbers, and argument in the alternative is a normal feature of legal argument, but logical consistency means that it is necessary to be clear about the reasoning leading to similar conclusions. If one route has an obvious flaw, that cannot necessarily be repaired by pointing to the fact that two other routes (with perhaps different flaws) can lead to the same terminus.

67.         The issue in this case is complicated by the fact that, as observed above quite soon after it was decided, Nicolaou was recognised as flawed and has been repeatedly criticised since. This is not simply because of the outcome of the case, or the rapidly changing social attitudes in that respect, but also because of the manner in which the judgment is expressed, which seemed to manifest hostility to the arguments made, and the plaintiff himself, a Greek Cypriot living in London who, in the language of the time, had fathered the child of an Irish Catholic woman who had given her child up for adoption and who was attempting to set aside the adoption after an extended and largely unexplained period of delay. This was compounded by the limited facts presented and clear dissatisfaction of the judges with the qualified manner in which those facts were presented. The manner in which the dates, names, places, and details of the relationship are held up to unforgiving forensic scrutiny and dissected, however, is still disturbing.

68.         There is, in my view, no doubt that Mr Nicolaou's case was one of the low points in the story of the development of constitutional jurisprudence in Ireland in the 1960s. The painful personal background to that extraordinary case is well told in Ruadhán Mac Cormaic, The Supreme Court (Penguin Ireland 2016). Even then, it might also be said that the mother of the child had her own story to tell, and she too might be said to have been ill-served by both the legislation and the judgment in a different way.

69.         It is important, however, to be clear about what was identified as being wrong in that case, and why it should be a salutary warning to any court. It was not the Divisional Court and the Supreme Court which decided that an unmarried father had no standing to be consulted about the proposed adoption. That was the law contained in the 1952 Act, which no doubt expressed the almost overwhelming view of Irish society about the position of a natural father of children born outside marriage, as later articulated in the judgments.

70.         There is now a general consensus that the error on the part of both the High Court and Supreme Court's judgments (apart from the language with which the decision was expressed) was the failure to find that the blanket exclusion of natural fathers from any consideration in respect of the question of adoption, was unconstitutional. This did not involve the conclusion that all persons who could be shown to be the genetic male parent of a child had to be treated in the same way, still less that they should be treated in the same way as a birth mother. Indeed, the statutory change made in subsequent decades did not equate the position of natural fathers and natural mothers, and the law continues to distinguish between natural fathers and natural mothers in some respects, at least in respect of adoption and guardianship. But s. 16 of the 1952 Act did not contemplate the natural father having any role in the question of adoption and gave, therefore, a lesser status to all natural fathers than even to any minister of religion, and it is now accepted that the reasoning of the Courts in finding that this exclusion did not breach the equality guarantee of the Constitution was flawed.

71.         In fairness to the Court deciding the case, it arose at a time when constitutional interpretation was at a relatively early stage of development, when the Court was hampered by a limited view of the equality provision invoked in the case, and the extent to which non-citizens could invoke constitutional guarantees and by an absence of well-developed critical analysis. At that stage, it might also have appeared that if Nicolaou's argument was successful, it would have the effect of invalidating not just the adoption in that case, (a disturbing prospect since the child had been with the adoptive parents for almost all her life) but all previous adoptions under the 1952 Act. The gradual development of equality jurisprudence; the understanding of the entitlement of non-citizens to invoke constitutional rights; and the appreciation that a declaration of invalidity does not automatically invalidate every act done under the impugned provisions, all lay some distance in the future.

72.         The case was, moreover, being decided at a time when harsh attitudes to sexual intercourse and having children outside marriage was widely shared, and not just, it might be said, in Ireland. If, therefore, viewed through the lens of history, and more particularly, legal history, it is perhaps not entirely surprising that the judgment reflected some of those attitudes, even if it might still have been said that the conclusion did not have to be expressed in such an insensitive way.

73.         The equality argument made was not that an unmarried father such as the plaintiff was being treated differently from a married father. That issue would have been impossible to advance, since at the time the adoption of children of married parents was not permissible in law at all, something which itself reflected a differential treatment on the basis of marriage. Instead, the argument was that s. 16(1) was an impermissible discrimination between the natural father and the natural mother. The argument had to be that while some differentiation between the respective position of natural parents was permissible; this differential treatment was unjustifiable. Looked at through the relatively underdeveloped equality jurisprudence of the time, this was a difficult argument to advance, since plainly there were some legitimate and powerful reasons to distinguish between natural mothers and natural fathers, as indeed the law still does.

74.         The key passage in the judgment leading to the conclusion that the provisions of s. 16(1) of the Adoption Act, 1952 were not unconstitutional in excluding any direct reference to the natural father, is to be found in the judgment of Walsh J. for the Supreme Court at page 641 of the report:-

"When it is considered that an illegitimate child may be begotten by an act of rape, by a callous seduction or by an act of casual commerce by a man with a woman, as well as by the association of a man with a woman in making a common home without marriage in circumstances approximating to those of married life, and that, except in the latter instance, it is rare for a natural father to take any interest in his offspring, it is not difficult to appreciate the difference in moral capacity and social function between the natural father and the several persons described in the sub-sections in question".

75.         This reasoning was that, taken as a group in general, it was possible to distinguish between natural fathers and natural mothers and given the relatively undeveloped constitutional jurisprudence at that time, particularly in relation to equality analysis, this was considered a sufficient justification to distinguish between those classes, with the effect that the plaintiff as a member of the class of natural fathers was permissibly excluded. While the desirability of a single rule covering all possible situations was a legitimate consideration, it was unfair to the plaintiff, and wrong in law, to group him, as a father showing significant interest in his child, with the almost melodramatic cast of criminals, seducers and ne'er-do-wells conjured up by this passage.

76.         It is useful in this regard that one of the finest commentators on the Constitution, J.M. Kelly, has left an almost contemporaneous analysis of the case in the second edition of his landmark work Fundamental Rights in the Irish Law and Constitution (2nd edn, Alan Figgis & Co. Ltd. 1967) ("Fundamental Rights") which was published very shortly after the decision in Nicolaou was delivered. He described the reasoning and the statements of principle underlying the decision as a "disappointment" at page 245, and in particular criticised the passage just set out in the following terms:-

          "With respect to the Court, this line of argument does not seem convincing. The recital of the various modes by which an illegitimate child can be conceived, with the addendum that, in all cases except the last, was rare for a father to take an interest in his offspring seems (since it was an instance of the last type that the Court was dealing with) to present the matter, not only emotively, but also the wrong way round. If the Court intended to embark on the behaviour of illegitimate fathers, it would have been more apposite to say that, except in cases of casual or criminal intercourse, fathers throughout the ages have, notoriously, often taken a great interest in their illegitimate offspring, sometimes as much, if not more than in their legitimate issue. This being so, it might be thought right, in cases like that of Nicolaou, not to deny them some standing where the adoption of their children is at issue."

77.         Another notable feature of Nicolaou's case and its subsequent reception is that it has been associated to an unusual degree with junior counsel for the plaintiff who argued this case, Donal Barrington, later a distinguished member of this Court. It is significant therefore, that he had the opportunity of addressing the decision in a judgment almost 30 years later, in W.O'R. v. E.H. [1996] 2 I.R. 248 ("W.O'R"). At pages 279-280, Barrington J. explained why he found the reasoning in Nicolaou unsatisfactory in terms that are strikingly similar to the analysis offered by Kelly in 1967. Having identified the passage from Walsh J.'s judgment set out above as the portion of the judgment now acknowledged to be incorrect, he continued:-

" ... once the Court had accepted that the prosecutor was a concerned and caring parent it was not logical to justify his exclusion by a reference to natural fathers who had no interest in the welfare of their children. This was to fall into the logical trap warned against in the opening paragraph of the passage quoted by treating equally persons who were in different situations, and amounted therefore to unfair discrimination.

The logical flaw in the argument can more easily be seen if one reduces it to a syllogism:-

(1) Many natural fathers show no interest in their offspring and the State may properly exclude them from all say in their children's welfare.

(2) The prosecutor is a natural father.

(3) Therefore, the State may properly exclude him from all say in his child's welfare".

This criticism has now been widely accepted, and it is no longer the case that the reasoning in Nicolaou on the equality argument would hold sway, whether in the field of adoption and guardianship, or more generally.

78.         What, then, are the lessons of Nicolaou for today's court and the future? The judges involved were among the most respected in the history of this Court, who have left judgments of considerable insight and intellectual power, which have illuminated the Constitution and contributed significantly to the development of constitutional law in the subsequent decades. Yet they were wrong, and it might be said ungenerous, in their approach to the case. Nicolaou has lessons for anyone interested in the development of Irish society, but it has also particular lessons for judges. It is not enough to observe that even Homer sometimes nods. It is a lesson against judicial overconfidence, an illustration of the ever-present risk of error, and of the essential requirement to proceed carefully, cautiously and rigorously. The sweeping statements may capture the fleeting attention and even temporary approval of legal professionals and the public as common sense and reflecting current social norms, but it must be capable of standing the test of time, and the rigorous analysis of future generations where it may fall to be analysed without the supporting substructure provided by social attitudes prevailing at the time of the decision.

79.         However, does this flaw in reasoning and outcome (at least in respect of the validity of s. 16(1) of the 1952 Act) mean that the Nicolaou Family statement that the Family in Article 41 is that based on marriage, is equally wrong and should also be disavowed? That is the particular and precise issue which arises on this aspect of the argument. This is not a case of the Court being careful of throwing the baby of the constitutional Family based on marriage, out with the bath water of the disparagement of natural fathers, because at this stage this is a provision whose loss would not be particularly mourned. Few today would protest if the Court were to announce that a wrong turn was taken in 1965 and that the Family in Article 41 was not limited to the marital family, and indeed, some might welcome it. But the easy approval which decisions reflecting the current zeitgeist can gain, is something a court should be particularly circumspect about. The Court's function is to say what the Constitution means: it is not to make it say what we, or others, would like it to mean.

80.         For a period after its promulgation, Bunreacht na hÉireann tended to be dismissed by external commentators as overly influenced by the Catholic Church and Catholic social teaching. The truth was more complex, and it can be said that the Constitution and the fundamental rights provisions were expressions of modern secular principles of liberal democracy, first embodied in the 1922 Constitution and carried over in 1937, but also supplemented and reinforced, in particular, by the addition of the Article 40.1 guarantee of equality before the law.

81.         There is, however, little doubt that Articles 41, 42 and 44 as originally enacted, in particular, are among the most visible influences of Catholic thought on the Constitution. In Re Tilson, Infants [1951] I.R. 1 ("Re Tilson"), Gavan Duffy J. was prepared to say that Articles 41 and 42 "redolent as they are of the great papal Encyclicals in pari materia, formulate first principles with conspicuous power and clarity". Declan Costello (later a distinguished judge), writing in 1962, described Article 41 as "most efficacious and based on philosophical truths incorporating natural law and not mere empty formulae safeguarding individualistic liberty" (Legal and Social Studies, (1962) 50 Studies 201). I would suggest, however, that the experience of 60 years of litigation since that statement was made have shown that while these Articles have generated much judicial exposition, academic writing, and public discussion, they have, as a matter of law, been arguably the least successful provisions in the Constitution, and have come under increasingly critical scrutiny as social attitudes have changed fundamentally over the last half-century. The subsequent half-century and more of litigation and debate have shown not just the degree to which society has departed from the model envisaged in 1937 but the difficulty created by an attempt to regulate complex and delicate personal relationships through lapidary, if sometimes impenetrable, statements of social theory in the guise of constitutional law.

82.         In the light of these more general observations, it is now appropriate to turn to examine more closely the three propositions set out at paragraph 65 above.      

Was the Nicolaou Family statement correct in 1966?

83.         This is the primary argument advanced on behalf of the appellants which is elaborated upon in the judgments Woulfe and Hogan JJ. deliver. It is necessary to trace the development of the law from 1937 to the present day in order to address this issue, and also to understand the extent to which the Nicolaou Family statement has been accepted and applied in subsequent case law and been adopted as the basis of legislation and, indeed, constitutional amendments.

84.         In 1937, the provisions of the original Articles 41 and 42 read as follows:-

"The Family

Article 41

1.        1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2.        1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.  

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

3.        1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

2° No law shall be enacted providing for the grant of a dissolution of marriage.

3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.

Education

Article 42

1.        The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2.        Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3.        1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

4.        The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

5.        In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."

85.         It is important to recall here the distinction drawn between the different arguments identified at paragraph 65 above. We are not here considering whether the language of Article 41 can now be made to bear a meaning of Family which includes non-marital families on the basis of some interpretive theory. The issue at this point, and the principal argument made in respect of Nicolaou, is that the text as properly understood always meant that the Family extended to non-marital families and that this was the meaning intended by the drafters and understood by those debating the text and by the People who ultimately adopted it. If this is so, it would follow, it is argued, that the decision in Nicolaou can be seen as a wrong turn which should be corrected, whatever the cost to the coherence of the subsequent jurisprudence.

86.         The starting point of the argument is to observe that the Constitution does not expressly define the Family as limited to the marital family or as excluding a non-marital family and that if this was intended it could have been said in express terms. This insofar as it goes is correct at least as an abstract proposition. However, as an interpretive technique this approach is of limited value. Given the fact that there is an almost infinite number of ways in which a concept may be expressed, the fact that it could have been expressed differently and explicitly addressed an issue, does not carry much weight on its own. It might be otherwise if it could be shown that there were different drafts in circulation addressing the issue more expressly, or that the previously applicable provisions, or comparable constitutions which were treated as templates, were more explicit on the issue. In those circumstances, the omission of express language might be instructive. But it is, I consider, ahistorical to address this issue through modern eyes and assume that there was a live issue as to whether a non-marital family was included in Article 41 which needed to be put beyond doubt. The most natural interpretation of the fact that the Constitution did not say in words of one syllable that the Family in Article 41 did not include a non-marital unit was because it was considered obvious from what was said.

87.         If anything, this argument can be made more forcefully in the opposite direction. If it was seriously being suggested in 1937 that the Family should extend beyond the family based on marriage then it is surely inconceivable that this would not have been stated expressly, not only for the novelty of the proposition to the eyes of the drafters but also because it would have given rise to a necessity to define what was meant by such a non-marital family and the circumstances in which such a unit would be treated as a Family for the purposes of Article 41. Furthermore, it seems if anything more than plausible that if such an express statement had been made in 1937 that the draft Constitution would have encountered widespread opposition in this regard.

88.         It does not, however, require any particular appreciation of the society which existed, or the social thinking which prevailed in 1937, to accept that the natural understanding of this text, is that the Family referred to in Article 41 is the family based on marriage. This follows, in particular, from Article 41.3 both in its terms, and from the location of that sub-article in Article 41, which speaks of guarding with special care the institution of marriage, but which also states that marriage is the foundation for the Family, (capitalised in Article 41.3 in the same way as in Article 41.1). Hogan J. observes that to say that X is founded on Y does not itself mean that X is synonymous with Y. But this, with respect, is to address the language in the abstract, and does not address the matter sufficiently in my view even as a matter of logic. Article 41.3 does not suggest that the "institution of Marriage" and "the Family" are the same; the text does, however, suggest strongly both in its language and structure that Y is necessary for X. Furthermore, even if it is allowed that the statement does not mean that X is the same as Y, it cannot mean that X can bear a meaning fundamentally inconsistent with Y. The institution of Marriage is to be guarded and protected from attack not for its own sake but rather because the Family is founded upon marriage and as such is the fundamental unit group and a moral institution possessing inalienable and imprescriptible rights. It is entirely conceivable that there may have been a contemplation of debate around the margins as to whether groupings other than the classic nuclear marital family such as grandparents or older siblings rearing a family might be said to be capable of coming within Article 41. However, the non-marital unit (whether as a couple or a natural mother and a child or children) is not an issue at the margins of what is meant by marriage or marital: it is something different and intended to be so. It is defined and described by the absence of marriage - non-marital, and unmarried. To put it at its lowest, I cannot accept that the textual interpretation of Article 41.3 as excluding a non-marital unit from the Article 41 Family is plainly or clearly wrong.

89.         Furthermore, the location in Article 41 of the prohibition of divorce (and the limitation on the recognition of foreign divorces), each of which can only have application to married couples, is also instructive. This location suggests that marriage, and its maintenance, was central to the concept of the Family to which Article 41 is addressed. There is also, it seems, a clear link between the reference in Article 41.2 to the State's guarantee to protect the Family in its constitution and authority and the provisions of Article 41.3.2° containing the then applicable prohibition on divorce.

90.         Finally, it might be observed, that while Article 41 makes repeated reference to marriage and to the Family, it makes no reference whatsoever to the concept of the non-marital family which, on this limb of the appellants' arguments, was always within the contemplation of the Article when it spoke of "the Family". Even looked at, therefore, as a simple matter of textual analysis without any reference to the historical background and subsequent case law, the overwhelmingly more plausible interpretation of the text is that the Family contemplated by Article 41 does not include a non-marital family unit, and this is how the Article has been interpreted.

91.         This conclusion is, however, strongly reinforced by a consideration of the historical background and by any consideration of the social thinking clearly reflected in the text of Article 41. The influence of Papal encyclicals on Articles 41 and 42 to which Gavan Duffy J. referred in Re Tilson, less than a decade after the adoption of the Constitution, has been noted.

92.         Hogan J. suggests that the Article 41.2.2° to mothers must protect both married and unmarried mothers from being obliged to engage in labour, since the drafters and the People in 1937 would have been aware that unmarried mothers were often the most economically vulnerable and must have intended to protect them. Regrettably this is, in my view, an excessively generous view of our past and a very slender basis for a broader reading of the Article 41 Family.

93.         The development of the law on the treatment of unmarried mothers and their children over the course of the 20^th century is instructive in this regard. In order to discuss these provisions, it is necessary to use the language of the law at the time, now happily superseded. Initially, as explained by O'Higgins C.J. in G v. An Bord Uchtála [1980] I.R. 32 ("G"), the common law treated the child of an unmarried mother as a filius nullius, the unfortunate offspring of the common failings of a man and woman, a burden on the locality and a person to be shunned. At common law, a disposition in favour of illegitimate children not in being at the time when the disposition took effect was void as contrary to public policy, a provision which was not abolished until 1987. The Illegitimate Children (Affiliation Orders) Act, 1930 was the first statutory procedure whereby a father of an illegitimate child could be ordered to pay for the birth expenses and contribute to maintenance. It was not until the Social Welfare Act, 1973 that an unmarried mother's allowance was introduced. Section 3(1) of the Family (Maintenance of Spouses and Children) Act, 1976 defined dependent child of the family as including the child of one spouse where the other spouse being aware that they were not the parent of the child treated the child as a member of the family. The list of legislation which required amendment on the passage of the Status of Children Act, 1987 included the 1976 Act itself, the Defence Act, 1954, the Succession Act, 1965 and references to illegitimacy in a series of Acts including the Provident Nominations and Small Intestacies Act, 1883, the Industrial and Provident Societies Act, 1893, the Friendly Societies Act, 1896, the Legitimacy Act, 1931. The 1987 Act amended a provision of the Local Government (Superannuation) Act, 1956 which provided that if a person in receipt of payment from a local authority, died at a time when money was due to them, the authority could pay the money to those persons appearing to be beneficially entitled to the estate, but if the deceased was illegitimate, the authority could distribute it among such persons as it saw fit. Significantly, the Illegitimate Child (Affiliation Orders) Act, 1930 provided that the authorities may provide assistance to unmarried mothers, through county homes or mother and baby homes, and a mother had a right to apply for an order under the Act. It was expected that the mother would spend some time in the home and the baby would be boarded out, and the mother was supposed to contribute to that cost. Homes were supposed to segregate first time offenders from repeat offenders i.e., a woman who had more than one child out of wedlock who, it was thought would have a corrupting effect on those who had only "fallen" once. It is difficult to see this legislative and administrative regime being consistent with Article 41.2 being understood to be directed particularly to the plight of unmarried mothers, or with the mother and child, whether by themselves, or with the father of the child, being considered a "moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law". This was, after all, the era of the Carrigan Report and the establishment of mother and baby homes, and more. It is, I suggest, a more accurate reading of the historical background to conclude that unmarried mothers were as invisible in Article 41 as they were or were wished to be, in the general life of the State.

94.         In this regard I should say that my observations at paragraph 66 of my judgment in Gorry v. Minister for Justice and Equality [2020] IESC 55 (Unreported, Supreme Court, O'Donnell, McKechnie, MacMenamin, Dunne and Charleton JJ., 23 September, 2020) ("Gorry") and quoted by Woulfe and Hogan JJ. in their respective judgments that, whatever else may be said about Article 41.2, it has not been suggested that the "woman" and "mother" contemplated in those provisions is limited to a married woman even if that was overwhelmingly the model in existence when the Constitution was drafted, appear to be incorrect. See in this regard: Cahillane, 'Revisiting Article 41.2' (2017) 40 D.U.L.J. 107. The background is also described in detail in Mohr, 'Embedding the Family in the Irish Constitution' in Howlin and Costello (eds), Law and the Family in Ireland, 1800-1950 (Palgrave Macmillan 2017). Accordingly, my observations, albeit obiter and made without the benefit of argument, cannot be treated as correct, or the basis of any interpretive approach to Article 41 more generally. The question of the extent of Article 41.2 does not arise for decision in this case. If it were to arise, it would require an analysis of the text in context, in this case Article 41 in its entirety. To that extent the argument is somewhat circular as it would be influenced by the answer to the question posed in this case. Clearly the question would require some interpretation beyond the natural meaning of the words taken in isolation: Article 41.2 would not seem to encompass the single woman living alone in her home, for example. I should say I do not intend by reference to these materials to engage in historical debate on the subjective views of drafters or contributors to the Constitution, or to speculate on what the People or drafters must be assumed to have intended; I merely seek to correct what was an overconfident assertion in Gorry that something had "never been suggested" when plainly it had. I remain of the view expressed in that case that the Constitution properly interpreted gives non-marital families substantial constitutional status and protection as such, and the status accorded by the Constitution to the marital family was not and should not be a barrier to this. However, I did not suggest there, and cannot accept, that this means that the non-marital family can be treated as within the Family referred to in Article 41.

95.         The past, particularly in relation to these matters, is indeed a different country, but that is no reason not to learn its language, understand its culture, acknowledge in how many ways it is different from today, and recognise how it influenced the provisions of the Constitution which are still applicable today.

96.         In Nicolaou itself, it is recorded that while counsel did argue that the plaintiff was entitled to rely upon Article 41, he conceded that this was not the strongest limb of his case (page 590). As already observed, John Kelly in Fundamental Rights was sharply critical of the reasoning in Nicolaou. He also suggested that the limitation of Family to a nuclear family based on marriage was unduly strict where it was conceivable there might be other groupings which could be entitled to such protection and to be included within the Family under Article 41, such as a unit made up of grandparents and grandchildren. He also suggested that the position of a natural mother might be viewed as little different to that of a widow and the child. However, he firmly rejected the contention that the Article could apply to what he termed "illicit" relationships:- "[this argument] was certainly the weakest leg of the applicant's case ... since it would be hard to expect a Court operating under Article 41.3, to treat an illicit union on the same footing as marriage". It would be remarkable if an argument acknowledged as weak at the time made should be now recognised as so "compelling" that the contrary conclusion would be "clearly wrong". The position is well summarised in Doyle and Hickey, Constitutional Law: Text Cases and Materials (2nd edn, Clarus Press 2019) at paragraph 18.09: "[Article 41.3] is strongly indicative of the idea that the family referred to in the opening subsection is specifically the marital family. As we shall see, the case law firmly establishes this as meaning that Article 41 protects the marital family alone: that non marital families do not count under this provision".

97.         It might be observed that viewed through modern eyes with the experience of more than 80 years of social change that there is something of a tension between the dogma expressed in Article 41 in respect of the Family and the breadth of the guarantees in Article 42, in relation to the rights of parents and children in general, but if so, it is arguably a tension in the Constitution itself. It is conceivable that there might have been a debate as to whether both the institution of the Family in Article 41 and the rights in Article 42 were limited to the marital family, or whether the limitation only applied in relation to Article 41 and the Family identified there. If so, as I will explain shortly, it was resolved fairly promptly in favour of the latter interpretation. But it is difficult to conceive that it was ever contemplated that the Article 41 Family could itself encompass non-marital or unmarried family units. At a minimum, it is difficult to conclude that the limitation of the Article 41 Family to marital families is clearly wrong.

98.         The logic of this interpretation of the Constitution, and in particular the limitation of the Article 41 Family to the nuclear family based on marriage, particularly if it had a consequential influence on the interpretation of the Article 42 rights of parents and children as similarly limited, might have been destined to put the Constitution on a collision course with Irish society as it changed dramatically in the late 1960s, and would probably have generated stronger demands for fundamental constitutional change, but for three inter-related developments.

99.         First, it became gradually recognised that Article 41 was more limited in scope than some of the rhetoric surrounding it might have suggested. In particular, it referred to the Family as a unit, and recognised a collective right rather than any individual rights of the parent or parents. The guarantee was limited to the protection of the Family in its constitution and authority. As such, the Article had limited application where there was a dispute between the spouses themselves, perhaps in relation to custody of children, as became increasingly the focus of the case law from the 1960s and 70s onwards. This was one further reason why it was unlikely to avail the plaintiff in Nicolaou.

100.     Second, there was a growing view that the fundamental objective of the Articles could be understood as guaranteeing the rights of children, rather than the rights of parents. In many respects, the Articles could be then understood to impose duties on parents rather than empowering them vis-à-vis their children.

101.     Finally, and perhaps most importantly, the case law distinguished between the Article 41 institution of the Family and the specific rights of children and rights and duties of parents under Article 42 and for different reasons, the position was never asserted that non-marital children, or their parents were not entitled to those rights. That position could have been achieved either by reading the more general language of Article 42 as extending to all parents and children, and not being limited to married parents or their children, or by an approach that relied upon the Constitution's apparent recognition that children had natural rights. This latter approach focused upon the fact that the language of Articles 41 and 42 showed that those Articles did not themselves purport to confer rights as a matter of positive law, rather they recognised the existence of the rights described as being anterior to positive law, including presumably the Constitution itself. It seemed, therefore, to follow that there were other natural rights or rights protected by natural law other than those enumerated in the Constitution. Article 42.5, referred to the obligation of due regard to "the natural and imprescriptible rights of the child". The rights referred to had not previously been specified in any part of the constitutional text. It followed that such rights existed outside the text of the Constitution. The Constitution, in turn, recognised such rights, and presumably required that they be protected, vindicated and enforced. As it happened, there were traces of both approaches in the case law, and both undermine the essential premise of the argument that if children of unmarried parents have constitutional rights that must mean that the Article 41 Family extends to non-marital families. If so, there is no basis to doubt what would otherwise be the interpretation of Article 41 particularly in the light of Article 41.3.

102.     Relatively soon after the adoption of the Constitution, the courts were prepared to find that, even though analysis of the text led to the conclusion that Article 41 was limited to the marital family, the Constitution could still recognise and protect natural rights of the individual members of the non-marital family unit, particularly the rights of children of unmarried parents, and rights of the natural mother whether by reference to Article 42 or by consideration of the natural and imprescriptible rights involved.

103.     In Re M, Gavan Duffy P. at page 344 said:-

"It is now universally recognised that the paramount consideration on such an application as this must be the welfare of the child, the word "welfare" being taken in its widest sense. Under Irish law, while I do not think that the constitutional guarantee for the family (Art. 41 of the Constitution) avails the mother of an illegitimate child, I regard the innocent little girl as having the same "natural and imprescriptible rights" (under Art. 42) as a child born in wedlock to religious and moral, intellectual, physical and social education, and her care and upbringing during her coming, formative years must be the decisive consideration in our judgment".

104.     The reference to "natural and imprescriptible rights" is clearly a reference to Article 42.5 as it then stood, and the reference to "religious moral, intellectual, physical and social education" is to the terms of Article 42.1. Thus, even at the same point as the first judicial pronouncement was made that the Article 41 Family was limited to the marital family, there was an acknowledgement that the natural and imprescriptible rights of the child born outside marriage, were the same as those provided expressly under Article 42.1, which of course acknowledged that the Family was the natural educator of the child, and acknowledged the right and duty of parents to provide for the education of children. In simple terms, Article 42 could apply to non-marital children and their parents, but the Article 41 Family did not extend to non-marital family units.

105.     This theme was echoed and expanded upon in Nicolaou itself but there the route taken focussed upon the natural rights of children. Walsh J., having expressly rejected the submission that a non-marital family could come within the provisions of Article 41 in the passage quoted at paragraph 10 above continued:-

" For the same reason the mother of an illegitimate child does not come within the ambit of Articles 41 and 42 of the Constitution. Her natural right to the custody and care of her child, and such other natural personal rights as she may have (and this Court does not in this case find it necessary to pronounce upon the extent of such rights), fall to be protected under Article 40, section 3, and are not affected by Article 41 or Article 42 of the Constitution."

Thus, the Court found that a natural mother had a "natural right" to the custody and care of a child and other natural personal rights.

106.     This line of reasoning reached its furthest point in the case law in G. In that case, the Supreme Court divided sharply on the question of whether a natural mother's right to custody and care of a child could be said to be constitutional or statutory in nature. Walsh J. in Nicolaou had considered that a natural mother had a constitutional or constitutionally protected right to the care and custody of her child, but those observations were obiter, and the issue was required to be addressed expressly in G. This issue was of considerable practical importance because the case, as many of the other cases in this line of authorities, was concerned with the question of adoption. If the natural mother's right to custody was purely statutory in nature, it could be waived or dispensed with under a statutory procedure, but if guaranteed by natural law and recognised by the Constitution (or otherwise constitutional in nature) it was arguable that it was an imprescriptible and inalienable right. In the event, all the members of the Court agreed that a natural mother could place a child for adoption but for different reasons, and differed further as to how the question of consent should be analysed and addressed.

107.     In G, Walsh J. in finding that the natural mother had a natural right protected by the Constitution, elaborated upon the reasoning in Re M and Nicolaou. At pages 67-68, he continued:-

"The mother and her illegitimate child are human beings and each has the fundamental rights of every human being and the fundamental rights which spring from their relationship to each other. These are natural rights. It has already been decided by this Court in Nicolaou's Case that among the mother's natural rights is the right to the custody and care of her child. Rights also have their corresponding obligations or duties. The fact that a child is born out of lawful wedlock is a natural fact. Such a child is just as entitled to be supported and reared by its parent or parents, who are the ones responsible for its birth, as a child born in lawful wedlock. One of the duties of a parent or parents, be they married or not, is to provide as best the parent or parents can the welfare of the child and to ward off dangers to the health of the child ...

In my view, in this respect there is no difference between the obligations of the unmarried parent to the child and those of the married parent. These obligations of the parent or parents amount to natural rights of the child and they exist for the benefit of the child. The child's natural rights in these matters are primarily to be satisfied by the parent or parents" [emphasis added].

108.     This reasoning is made if anything even clearer in an essay by Walsh J., writing extra-judicially in The Constitution of Ireland, 1937-1987, Frank Litton (ed) (IPA 1988) at pages 96-97:-

"It is true that the family envisaged in [Article 41] is the family based upon marriage, as is made quite clear from the provisions of the Article itself. However, it is not correct to say, as it has been frequently stated, that the effect of judicial decisions has been to declare that the only family recognised by the Constitution, or protected by the Constitution, is the family based on marriage. [emphasis added].

109.     By this reasoning, the effect of the textual limitation of Articles 41 (and on Walsh J.'s approach, as extended to Article 42) to marital families is considerably softened, if not removed altogether. The focus shifts to the child, who it is said must have exactly the same rights as those afforded to the children of marital couples. These rights (like those rights expressed in the Constitution) are not conferred by the Constitution but rather are natural rights recognised by the Constitution. It follows that since in nature a child of a non-marital family is exactly the same as a child of a married couple, they will have the same natural rights in constitutional law. Those rights include the right enumerated and recognised in Article 42.1 to religious, moral, intellectual, physical and social education in the case of children in a marital (Article 41) family. Thus, the natural parent or parents (and in this regard the plural used by Walsh J. in G is of some significance) also have entitlements, and perhaps more importantly duties, arising from the relationship to their child as the rights of the child are "primarily to be satisfied by the parent or parents". In a functioning family unit, therefore, where decisions are being made, this has the effect that the views and decisions of the parents in such a unit have constitutional protection, not necessarily directly in their own right, but certainly indirectly by virtue of the children's rights including the right to have their rights satisfied by their parents. By this route, substantial constitutional recognition is afforded to non-marital families, and the same degree of protection afforded to the parents and children as that afforded by the text of the Constitution to marital families.

110.     It is useful here to recall the argument advanced on behalf of the appellants. It was argued that it must be the case that the children of a non-marital family have the same right to, say, primary education referred to in Article 42 as a child of a marital family. It is then suggested that if so, it must follow that the term "parents" referred to in that Article incorporates all parents, marital or non-marital and if this process is continued backwards through Articles 42 and 41 it must follow that "Family" in Articles 41 and 42 is equally a marital and non-marital family.

111.     However, even allowing for the moment that this route could lead to an interpretation of the Article 41 Family contrary to that which the text and case law would suggest (and the logic is not a given in any event - the fact that for example, "parent" in Article 42 could extend to non-marital parents would not lead ineluctably to the conclusion that the Article 41 Family is not limited to the marital family), the reasoning set out in the line of case law from Re M through Nicolaou and G explains why that reasoning cannot be accepted, at least as regards to the existing jurisprudence of the Court. As set out in Nicolaou, it is true that children of a non-marital family have the same right to primary education as that of a marital child has under Article 42.4, but not necessarily by virtue of the express wording of that Article. The child of married parents and their parents have such (natural) rights, recognised and enforced by Articles 41 and 42, and the child of unmarried parents and their parents have natural rights which are also recognised by the Constitution, but in this case through the route of Article 40.3. For reasons already touched upon, this line of authority (together with the understanding of the more limited scope of those rights guaranteed by Article 41 and the appreciation that the rights guaranteed by the Article were primarily those of children) removed most, if not indeed all practical consequences of the conclusion derived from both text and history, that the Family in Articles 41 and 42 was limited to the family based on marriage.

112.     It is not now either possible or, indeed, necessary to consider whether this natural rights reasoning is entirely persuasive, and for my part I do not find it necessarily compelling. It also gives rise to potential and undesirable uncertainty since it suggests the existence of natural law rights, the contours, extent, and qualifications of which are to be determined by the courts, and such an expansive approach to interpretation today might sit uncomfortably with the approach to constitutional interpretation set out in Friends of the Irish Environment v. The Government of Ireland [2020] IESC 49, [2020] 2 I.L.R.M. 233. But it has to be acknowledged that the text of the Constitution in these Articles does reflect the theory that children have natural rights protected by the Constitution that are not specified in the text. Furthermore, this reasoning is now very well established in Irish law, and has the effect that, while the State has never sought to deny to non-marital families the rights expressed in the Constitution as guaranteed to marital families, or to interfere with the constitution and authority of non-marital families in a way which would not be permitted in respect of marital families, it would not be permitted to do so under the Constitution.

113.     Moreover, and importantly for present purposes, this reasoning proceeds from the premise that the text of the Constitution in Articles 41 is limited to marital families. There remains, therefore, a constitutionally recognised distinction between marriage (and marital status) and other relationships. Accordingly, while the rights of the individual members of a family, and in particular the rights of the child, are guaranteed by the Constitution whether under Article 42 or Article 40.3, it is still permissible to distinguish between marriage and other relationships, and in particular to treat marriage differently, and in accordance with Article 41.3 more favourably, so long as that does not infringe any of the rights found to be guaranteed by the Constitution.

114.     However, the conclusion at this point is simple: at a minimum, neither the text nor the history of the Constitution supports the argument that the Nicolaou Family statement is clearly wrong; if anything the opposite is the case. This conclusion is however strongly reinforced by a consideration of the decided cases and academic commentary.

Decisions on the interpretation of Article 41

115.     Nicolaou is by no means the only decision in which it is held that the family in Article 41 is and is only the marital family. Nor can it be said that the jurisprudence to this effect is an embarrassing relic of a particular period, which can be quietly jettisoned. Instead, the statement made in Nicolaou has been repeated expressly in a number of cases, and forms part of the accepted backdrop to innumerable other cases. Thus, for example, the proposition was the accepted starting point of the decision of the Supreme Court in G. Henchy J. at page 86 of the report said, for example:-

" Rights and duties in regard to the custody of a child who was born out of wedlock and who is not a member of a family (in the constitutional sense of the word) are not encompassed, expressly or impliedly, by any of the constitutional provisions I have cited" [emphasis added].

116.     In W.O'R., the Supreme Court dealt with a case stated from the Circuit Court in respect of issues which had arisen in an application by a natural father to be appointed a guardian of his children pursuant to s. 6A of the Guardianship of Infants Act, 1964 as inserted by s. 12 of the Status of Children Act, 1987. The natural father and mother had two children. They separated but remained on good terms. However, the mother subsequently married, and her new husband sought to adopt the children. The natural father then applied to be appointed a guardian and issues arose as to the manner in which the District Court, and on appeal the Circuit Court, should deal with the application in the light of the adoption application. In particular, the Court was expressly invited to reconsider the decision in Nicolaou, and the limitation of Article 41 to the marital family. Question 5 in the Case Stated was posed in the following terms:-

"Is the concept of de facto family ties as referred to in the European Court of Human Rights' decision of Keegan v. Ireland ... afforded recognition under the Constitution and what rights, if any, accrued to the father in the instant case arising from same?" [emphasis added]

117.     This was the case in which Barrington J. set out his detailed criticisms of the decision in Nicolaou discussed at paragraph            77 above. Although the headnote to the report records him as dissenting, his judgment makes it clear (page 285) that he expressly agreed with the answers to the questions proffered by the Chief Justice, and with which the other members of the Court agreed. Hamilton C.J. set out the following answer to question 5:-

" The decision of the European Court is not part of the domestic law of Ireland. The family referred to in Articles 41 and 42 of the Constitution is the family based on marriage. The concept of a "de facto" family is unknown to the Irish Constitution. The Irish Supreme Court, however, in its decision in J.K. v. V.W. [1990] 2 I.R. 437 recognised the existence of "de facto families" and also the fact that a natural father who lived in such a family might have extensive rights of interest and concern of the kind referred to in the reply to the previous question" [emphasis added].

118.     Denham J. for her part agreed, and said at page 272:-

"The jurisprudence of the Irish courts has been that the constitutional family is the family based on marriage. While the Constitution does not define "the family", the wording of Article 41 is clear...

The effect of the Constitution grounding the family for the purposes of Article 41 on marriage was to exclude natural fathers from that institution. "

119.     It is particularly noteworthy then that Barrington J. at page 283 of the reported judgment said:-

"It appears to me that they [the reciprocal rights and duties derived from the blood tie between parents and child] can be referred to as natural rights and duties or constitutional rights and duties and that, in the context of Articles 41 and 42, the two terms are indistinguishable ... [t]he relationship between natural parents and their child can be compared with that existing between married parents and their children under Article 42 of the Constitution, but the group does not form a unit group or institution within the meaning of Article 41. The relationship will give rise to reciprocal duties and rights but the manner in which these will, or can, be expressed will vary greatly with the circumstances. On the one hand the parents may be living together in what could be described as a  de facto family. On the other hand, the circumstances attending the child's conception or birth may be so horrific as to make it undesirable, or unthinkable, that the parents should live together" [emphasis added].

120.     Barrington J. was prepared perhaps to go further than the other members of the Court and hold that the natural father had positive rights (and not just rights of interest and concern) under Article 40.3, but as the above quotation makes clear, he agreed that while the relationship could be compared with that existing between married parents and their children under Article 42, the group did not form a unit, group or institution within the meaning of Article 41.

121.     More recently again, in J. McD. v. P.L. [2009] IESC 81, [2010] 2 IR 199, this Court had to deal with a dispute which had arisen between a same sex couple who, before the passage of the marriage referendum, were bringing up a child, born to one of them as a result of conception by a sperm donor, the applicant, who subsequently sought guardianship and access to the child. The Supreme Court unanimously overturned the decision of the High Court, that the couple could be regarded as a de facto family having rights under Article 8 of the Convention and, by implication, the Constitution. Denham J. with whom the other members of the Court agreed, surveyed the decisions in some detail, which is not necessary to repeat here, and concluded at paragraph 142 that " [t]hroughout our case law the family is defined as the family based on marriage " [emphasis added]. Fennelly J., for his part, referred to the constitutional rights of the natural mother, citing O'Higgins C.J. in G, and continued at paragraph 288, "The right here recognised is a personal right protected by Article 40. 3 of the Constitution. Articles 41 and 42 apply only to families founded on marriage" [emphasis added].

122.     The case law has been consistent in maintaining that the rights guaranteed by Article 42 extend to all children, although the basis for this conclusion has differed. As already observed, if there is any tension between the fact that such rights are guaranteed to children of unmarried parents and the dogma that the Article 41 Family does not include non-marital family units, that may reflect a tension in the Constitution itself. But the finding that the Family referred to in the Constitution is the family based on marriage, and does not include a non-marital family unit is probably one of the statements of law which has been endorsed most widely in Irish jurisprudence, both when the issue was expressly raised and challenged and, as a starting point for analysis in other contexts.

123.     I do not think that the decision in Jordan v. O'Brien [1960] I.R. 363 or the dicta therein can or should be understood as casting doubt upon this hitherto unbroken line of authority. The context was quite different. The Rent Restrictions Act, 1946 was not intended to make fundamental statements of principle. It was accepted that the interpretation adopted of the statutory term was broader than Article 41. Even then Lavery J.'s observations contemplated only the possibility that it might be argued that the Article 41 Family might encompass grandparents or older siblings raising children where the natural parents were unable to do so. If this line of authority was to be overturned now by judicial decision, it would involve a very substantial reordering of the jurisprudence starting from Nicolaou with consequences both for the particular area and the process of constitutional interpretation that cannot be easily anticipated. Respect for the binding force of precedent is an essential foundation for a common law system and it would, I consider, require a high degree of assurance that a decision was wrong, and that it can and should be corrected, to overrule such a long-established statement. It is sufficient for present purposes to say that at a minimum the argument that the Nicolaou Family statement is and was wrong falls well short of satisfying this standard. Indeed for the reasons set out, I consider the interpretation I have discussed is the more likely interpretation of Article 41, and moreover one that is firmly embedded in the jurisprudence and the law of the State.

Nicolaou and law reform

124.     However, the extent of acceptance of the Nicolaou Family statement is not limited to the case law, extensive though it is. The fact that Articles 41 and 42 in their terms are limited to the marital family, has been accepted as the basis for proposed law reform. Perhaps the most important and authoritative example is the Report of the Constitution Review Group (Constitution Review Group (Pn 2632, Stationary Office 1996)). At page 321, the report deals with the constitutional definition of a family. It stated unequivocally that "[t]he family recognised and protected in Articles 41 and 42 is the family based on marriage". Having cited Nicolaou, it explained that support for the view was derived from Article 41.3.1° and that "[t]he effect of this definition is that neither a non-marital family nor its members are entitled to any of the protection or guarantees of Article 41. Likewise, they are properly not comprehended by the terms of Article 42..."

125.     The report stated that the Review Group had received many submissions to the effect that Article 41 should be amended to recognise family units other than the family based on marriage. It observed that in Irish society there were numerous units who were generally regarded as family units, but which were not families based on marriage. There were differences in the treatment of such family units for different purposes. For certain social welfare purposes, heterosexual couples cohabiting were treated as a family unit but were not generally so treated for the purpose of tax laws or succession laws.

126.     The Review Group expressed the view that the constitutional protection of the rights of any family unit other than the family based on marriage presented significant difficulties of definition both as to the people who could be considered families, and the length of time of duration of cohabitation where relevant. Having considered the provisions of the Convention and the International Covenant on Civil and Political Rights, the Review Group expressed the view that the emphasis of Article 41 is the protection of rights of the family as a unit rather than the protection of rights of individuals resulting from a family relationship. The Group considered that this approach "presents particular difficulties if the family unit is extended beyond the family based on marriage by reason of the uncertainties referred to above as to the existence at any given time of any such family unit". It suggested retaining in the Constitution a pledge by the State to protect the family based on marriage but also to guarantee to all individuals a right to respect for their family life whether that family is or is not based on marriage. It is very clear from the terms of the Review Group's report and the appendices authored by Professors Duncan and Lynch respectively, arguing for comprehensive reform, that the Group considered the Family referred to in Article 41 was only that based on marriage, and that this indeed formed the basis for its recommendations for reform. The Report has provided the background for subsequent discussion to date and proposals for constitutional amendment.

127.     In light of the case law, there has been an unsurprising degree of consensus in the academic writing, not just from the dwindling group who may have considered the provision acceptable as a matter of social policy, but more clearly from those many other writers who argued that it was unduly restrictive, offensive and should be reformed. Among the most comprehensive and detailed analyses referring to the definition of Family are indeed those calling for reform. See, for example, the extended treatment in Connolly 'The Constitution' in Connolly (ed.), Gender and the Law in Ireland (Oak Tree Press 1993); Martin 'The Family and the Constitution - Principle and Practice' in Tim Murphy and Patrick Twomey (eds.), Ireland's Evolving Constitution 1937-1997 (Bloomsbury 1997); and Ryan, '21^st Century Families: 19^th Century Values; Modern Family Law in the Shadow of the Constitution' in Eoin Carolan and Oran Doyle (eds.), The Irish Constitution: Governance and Values (Thomson Round Hall 2008). It is also noteworthy that while Nicolaou has been criticised sometimes severely in subsequent years, that criticism has nearly always been on equality grounds, echoing in this respect the criticisms first made by Kelly set out at paragraph 76 above, see Casey, Constitutional Law in Ireland (3^rd edn, Sweet & Maxwell 2000) at 463; Doyle, Constitutional Equality Law (Thomson Round Hall 2004) at 161-164; and Dickson, The Irish Supreme Court: Historical and Comparative Perspectives (Oxford University Press 2019) at 220. One dissonant voice was the view articulated in Staines, 'The Concept of "The Family" under the Irish Constitution' (1976) 11(2) The Irish Jurist 223, that the Article 41 Family could extend to non-marital families. However, it is perhaps more noteworthy that this contention was not taken up thereafter either in the subsequent extensive academic writings, or the case law, until mentioned in passing in the obiter observations of McKechnie J., in In Re J.J. [2021] IESC 1 (Unreported, Supreme Court, O'Donnell, McKechnie, Dunne, O'Malley, Baker JJ., 22 January 2021) ("Re J.J.") to which it is necessary now to turn.

128.     Re J.J. involved an urgent application in relation to the treatment of a young boy who had suffered catastrophic injuries in an accident. The High Court and this Court heard the case at short notice. In this Court, a joint judgment was delivered by O'Donnell, Dunne, O'Malley and Baker JJ. A separate concurrence was delivered by McKechnie J. It is that impressive judgment which is relied on in this case. At paragraphs 150-170 of the judgment, McKechnie J. reviewed some of the law on Article 41 on the non-marital family unit and makes a plea for reconsideration of the law in this regard. McKechnie J. expressed his agreement with the observation of Humphreys J. in the High Court in IRM v. Minister for Justice and Equality, [2016] IEHC 478 (Unreported, High Court, Humphreys J., 29 July 2016) ("IRM"), where Humphreys J. suggested that:-

"the 34^th Amendment has extended the availability of marriage to a range of same-sex relationships in contexts that would have been unthinkable when the Constitution was adopted. To regard this as mere technical extension of the category of persons who may marry, rather than a quantum leap in the extent to which the Constitution is oriented towards respect and protection for a diversity of private family relationships, is to artificially separate literal wording from history, culture and society".

129.     However, and notably, the issue did not arise in Re J.J., because although the parents in that case were not married, McKechnie J. accepted that that fact in the end had no impact on the outcome of the case as it could not be said that the result would have been different had the parents been married, nor was this suggested by the parties. This was, in part, because of the acknowledged rights of the child and therefore the parents following from the line of authority set out above. As is apparent from the other judgments, the issue was not addressed in argument, and perhaps for that reason there was not a comprehensive survey of all the decisions or academic writing. In any event, these obiter observations in a concurring judgment stop well short of arguing that the Article 41 Family should be extended to non-marital units. It argues, instead, for (quoting Humphreys J. in IRM) "a recognition that members of a non-marital relationship, and non-marital parents of both sexes in particular, enjoy acknowledgement of inherent constitutional rights in relation to their children and each other on a wider basis than has been recognised thus far". My observations made obiter in Gorry at paragraphs 66-68 should be understood as a similar plea for the recognition of the constitutional rights, duties and interests of non-marital families, parents and children on the widest possible basis, but does not support the contention now advanced that the Article 41 Family can extend to non-marital families.

130.     In my view, in the light of the text of the Constitution, the historical background and its repeated analysis in case law, it is impossible to accept the argument that the Nicolaou Family statement was clearly wrong and that Article 41 of the Constitution, as it stood in 1937 or in 1966, should be held to extend beyond the marital family and include the non-marital family. Next, it is necessary to consider if Article 41 should be so interpreted now either by virtue of the introduction of Article 42A or by virtue of changing social circumstances, or both.

Article 42A

131.     It was argued that whatever the interpretation of the Constitution in 1937, and thereafter, a radical change occurred in 2015 with the adoption of Article 42A which replaced Article 42.5 with a separate extensive article recognising the rights of all children, and that where parents, regardless of their marital status, failed in their duties the State may intervene; provided for the possibility of adoption of any child; and provided that the best interests of the child should be the paramount consideration in proceedings concerning the safety or welfare of a child or the adoption, guardianship, custody or access to such a child.

132.     Article 42A undoubtedly equates the position of all children as possessing the same rights protected by the Constitution, and recognises that all parents regardless of marital status may fail in their duty to their children necessitating intervention by the State. This in turn supports the interpretation of the Constitution that "children" and "parents" in the Constitution should not be interpreted to be limited to marital children and married parents. It is said also that Article 42A provides textual support for an approach that the concepts of children and parent must then be read back through Article 41 so that "Family" must also now be read to extend to non-marital relationships.

133.     There is no doubt that the Constitution must be read as a harmonious whole, and that changes in some provisions may have ripple effects on other provisions within the Constitution, which may affect the interpretation of the Constitution beyond the terms of the amended text itself. Thus, for example, passage of the Thirty-fourth Amendment to the Constitution in 2015 permitting same sex marriage has an undoubted impact for the meaning and correct application of the equality guarantee under Article 40.1 and for the understanding of marriage itself, see H.A.H. v. S.A.A. [2017] IESC 40, [2017] 1 IR 372. This is an important aspect of the process of amending the Constitution from time to time. But this process cannot be understood as altering the established understanding of the Article 41 Family as limited to the marital family.

134.     It must be recognised that despite the extensive criticism of Article 41.1 for its definition of Family and calls for reform, the Thirty-first Amendment of the Constitution introducing Article 42A did not address Article 41 expressly. The argument, therefore, that it must be understood to have done so implicitly faces a high hurdle. In particular, it is relevant that although the difficulties and the criticisms of the traditional interpretation of Article 41 were well known by 2015 (not least those contained in the Constitutional Review Group Report of 1996), the proposed amendment stopped short of proposing any change to Article 41 itself.

135.     The approach taken by the new Article 42A, far from disavowing the prior interpretations of Articles 41 and 42 appears to build upon the interpretive approach to the position of children and parents in the established case law from G, which, as we have seen, is itself to some extent dependent upon the reading of the express terms of Articles 41 and 42 as limited to marital families. In effect, in this regard, it sought to put beyond doubt in the text of the Constitution what had been said in the case law - that the rights of children were the same irrespective of the marital status of their parents. Thus, the introductory words of Article 42A: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, so far as practicable, by its laws protect and vindicate those rights" re-emphasises the language of the old Article 42.5 to which reference had been made in Re M, where, the natural and imprescriptible rights of all children were seen as recognising the fact that children of non-marital unions had constitutionally protected rights. The text of Article 42A, therefore, appears to endorse the approach that the Constitution merely recognises pre-existing natural rights. To that extent, the terms of Article 42A can be said to accept and, if anything, endorse the reading of the Constitution commencing with Re M, and running through Nicolaou and G.

136.     I cannot see, therefore, that directly or indirectly Article 42A can be understood to alter the established interpretation of Article 41.

The Constitution as a Living Tree

137.     This contention which was advanced by the appellants implicitly accepts that the text of the Constitution itself, or as interpreted by the courts, limits the Article 41 Family to the marital family, but argues that a court can and should adopt a different interpretation of Article 41, which would have a broader concept of the family because, it is said, the Constitution is a "living tree", capable of being adapted to modern social conditions.

138.     There is, I think, a mismatch between the use of the living tree metaphor in some popular commentary and the manner in which the Constitution has been, and should be interpreted by the courts. In particular, in its strongest and crudest form, it is difficult to reconcile with the provisions of a Constitution establishing Ireland as a democratic state based on popular sovereignty and permitting amendment of the Constitution by the People. The phrase has not been used in the case law in this jurisdiction up until now, and the circumstances in which courts have acknowledged that constitutional rights should be interpreted in accordance with prevailing ideas of the values of prudence, justice and charity do not involve or justify interpretation that amounts to an amendment of the Constitution.

139.     In McCulloch v. Maryland 17 U.S. 316 (1819), Chief Justice John Marshall said famously, "we must never forget that it is a Constitution we are expounding". That is, that a constitution is expressed in deliberately broad terms in what has sometimes been described as great generalities, and does not purport to be a detailed, precise code designed to cover all possible situations. Rather, it is to be expected that concepts like equality, due process and privacy will require that they be interpreted in the light of developments that themselves might not have been capable of being anticipated when the Constitution was first adopted and in the light of developing understandings of these concepts. It is to be expected that of their nature such developments would be incremental, by reasoned elaboration, and by reference to precedent.

140.     The origin of the "living tree" metaphor, is to be found in Viscount Sankey's speech in Edwards v. The Attorney General for Canada [1930] AC 124 where the British North America Act of 1867 was described as a "living tree capable of growth and expansion within its natural limits".

141.     Lord Bingham of Cornhill explained this further in the Privy Council decision Brown v. Scott [2003] 1 AC 681, in the context of the Convention. There, he said:-

"The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a "living tree capable of growth and expansion within its natural limits" (Edwards v Attorney General for Canada ...), but those limits will often call for very careful consideration" [emphasis added].

142.     In the Irish context, the most common references in this regard, are to the landmark decisions in State (Healy) v. Donoghue [1976] I.R. 325 and McGee v. The Attorney General [1974] IR 284. The passages in those cases do not support the broad contention that the Court may simply adopt an interpretation of the Constitution to make the text conform to what is perceived to be present day views. In State (Healy) v. Donoghue, O'Higgins C.J. said:-

"In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment".

143.     This passage does not itself support the broad jurisdiction contended for by the appellants. It is necessarily the case that broad textured concepts such as prudence, justice, charity, fair trial and free speech when applied to modern circumstances may lead to an interpretation different to that which might have been reached in 1937 had the same question arisen for decision, but the Constitution must still be interpreted. In adopting the concept of the Family in Article 41, and stating that those families based on marriage require the State to guard that institution with special care, the People were performing the basic function of a constitution guaranteeing rights: identifying what they regarded as fundamental rights and their nature and limits; putting those rights beyond the reach of legislation; and obliging the State to uphold them unless and until the People decide to change, amend, vary or remove those rights.

144.     This aspect of the argument was not pressed by the appellants, and it is perhaps not necessary to discuss at further length. There may of course, be arguments as to the precise limits of permissible development of constitutional law. A degree of flexibility to, as Holmes put it "play at the joints", is essential if a constitution is to perform its function over time and there is room for disagreement as to the precise limits of any such flexibility in any given case. But if it is clear that the Article 41 Family was, was intended to be, and was understood to be, limited to the marital family, a suggestion that the Article 41 Family can now be held to encompass the non-marital family, on no better basis than 'that was then and this is now,' would pass well beyond any permissible exercise in interpretation, and risk becoming simply judicial fiat - what Alexander Hamilton, in Federalist Papers No. 78 called "Will" instead of "Judgment".

145.     The process of constitutional amendment and interpretation has been said to be a form of inter-generational constitutional conversation. It is entirely permissible to listen to a previous generation, profoundly disagree, and make our own changes and state or restate principles we consider sufficiently fundamental that they in turn should be put beyond the power of a legislative majority. But we owe it to our forebears, to the importance of the inter-generational conversation, and to the future of the process, to honestly acknowledge what it is they said.

146.     For my part, I do not find the exclusive concept of Family in Article 41 that was contained in the 1937 Constitution either attractive or admirable or one that is well suited to a contemporary society, at least as I understand it. If it was an experiment in implementing social views, or the teaching of a particular church, in the law then it cannot be said to have been successful. But if it is what the People chose in 1937, and how the document has been repeatedly understood, then in my view it is for the People to choose in what way that provision should be altered.

Legislative distinction based on marriage

147.     The Court invited the parties to address the question of the extent to which the statute law of the State distinguishes between married couples and cohabiting couples. There was a high degree of consensus in the responses of the parties. In general, it can be said that the statutory provisions tend to treat married couples and civil partners as essentially similar, and regularly distinguish between married couples and civil partners on the one hand, and cohabitants, on the other. The appellants' arguments taken at their height would suggest that all such distinctions would be vulnerable.

148.     While there are a large number of individual provisions, the generalisation made by the Constitutional Review Group in 1996 remains reasonably accurate. A very broad distinction is discernible between taxation and succession provisions on the one hand, and social welfare on the other. For the most part, the law of taxation and succession distinguishes clearly between marriage (to which civil partnership is analogised) and non-marital relationships, whereas social welfare provisions tend to extend the same benefits to cohabiting couples (and their children) as to married couples (and civil partners and their children). There are, of course, exceptions to this (very) general rule: the transfer of a principal private residence between cohabiting couples is treated for the purposes of capital gains tax ("CGT"), capital acquisitions tax ("CAT") and stamp duty, in the same way as a transfer between spouses. On the other hand, in the field of social welfare, the provision under scrutiny in this case, is one exception to the similar treatment of cohabitants, married couples and civil partners, as indeed are the provisions providing for allowances for single or unmarried mothers. But the fact remains that there are a wide range of provisions which distinguish on the basis of marital status which would appear vulnerable to the same challenge under Article 41 as is made in this case.

149.     The scale of the provisions which make a distinction on the basis of marital status is, however, instructive. The appellants and the respondent supplied very extensive lists of the various acts and provisions a distinction is made between married and unmarried persons. The following is a small sample of perhaps the more significant provisions. Thus, ss. 461 and 461A of the Taxes Consolidation Act, 1997 provide for a tax credit for married persons, widowed persons and surviving civil partners. Sections 1016-1031 provide for joint assessment of spouses for the purposes of income tax and CGT, and similar provision is made for civil partners by ss. 1031A-N. Section 71 of the Capital Acquisitions Taxes Consolidation Act, 2003 provides for an exemption for spouses and civil partners from CAT on inheritance. No similar provision is made in respect of cohabitants (except in the case of principal residence already referred to). The Succession Act, 1965 as amended, provides in s. 56 for the rights of a surviving spouse or surviving civil partner to require a dwelling to be appropriated in respect of their share of the estate of the deceased. The legal right to a share of the estate of the deceased of an intestate is provided for under s. 67 (spouse) and s. 67A (civil partner). Sections 109, 111, 111A and 112 provide for the rights of a surviving spouse and civil partner in the case where a testator dies testate. It can be said therefore, that the entire scheme of the Succession Act rights is based on marital status, and the status of civil partnership. By contrast, the 2010 Act does provide that a qualifying cohabitant has a qualified right to apply to the court in certain circumstances under s. 194 for provision to be made out of the estate of a deceased cohabitant. This is, however, both in terms of the definition of cohabitant, and in the scope of the right, significantly different from the rights accorded under the Succession Act to surviving spouses and civil partners.

150.     Section 15A of the Irish Nationality and Citizenship Act, 1956 (as amended) provides for less onerous conditions of naturalisation for spouses and civil partners, than those imposed on other applicants (including cohabitants). Section 56(9) of the International Protection Act, 2015 defines member of the family for the purposes of applications for family reunification and makes a distinction based on marital status. Other miscellaneous provisions also reflect the same distinction. The Family Home Protection Act, 1976 grants certain rights to spouses, (and by virtue of the 2010 Act) to civil partners. By contrast qualified cohabitants are, by s. 173 of the 2010 Act, given a right to apply to court, and the court has a discretion to make an order in favour of the cohabitant under specified circumstances.

151.     Further afield, the Criminal Evidence Act, 1992 provides that a spouse of the accused shall not be compellable to give evidence in criminal proceedings at the behest of the prosecution, while it provides that a spouse may be compellable by or on behalf of the accused. No similar provision exists in relation to cohabitants. Section 9(2) of the Proceeds of Crime Act, 1996 provides that where a person is ordered to file an affidavit specifying property in his or her control, income or sources of income, the affidavit is not admissible in evidence in any criminal proceedings against that person or his or her spouse. Other miscellaneous provisions include provisions such as s. 4 of the Presidential Establishment Act, 1938 providing for the pension entitlements of a surviving spouse or civil partner of a deceased holder of the office of President. Section 13(5) of the Ethics in Public Office Act, 1995 provides that an office holder must disclose specified additional interests of his or her spouse or civil partner which could materially affect the office holder in or in relation to the performance of a function of his or her office. Section 148 of the Planning and Development Act, 2000 provides that a person shall be regarded as having a beneficial interest with regard to the interests of his or her spouse or civil partner. Section 57(5) of the Institutional Burials Act, 2022 defines family member in the context of a provision providing for the final arrangements for recovered human remains in circumstances which do not extend to a cohabitant.

152.     The above are only a random selection of the provisions which the parties agree make distinctions based on marital status. In all such cases the same provisions now apply to civil partners by virtue of the 2010 Act. However, an "ought" cannot necessarily be derived from an "is": it does not follow because the Statute Book is replete with provisions which distinguish on grounds of marital status, that it is constitutionally permissible. It is, however, relevant, at least in its simplest form, that the appellants' argument, if correct, would mean that all of these provisions would appear to be vulnerable to constitutional challenge. It is not clear to me for example how the approaches of Woulfe and Hogan JJ. might apply in this regard, and whether there are differences in their respective approaches.

153.     There are further considerations which also counsel against adopting the course urged by the appellants. Once it is accepted that Article 41 extends beyond the marital family to non-marital units, then it is difficult to describe at what point, and by reference to what characteristics, should a non-marital family be recognised as an Article 41 Family. The argument is, of course, that at some point, and for some purposes, a non-marital family can be said to be the same as, and perform the same social functions as the marital family identified in Article 41. But the difficulty in identifying that point, and distinguishing the decisive characteristics from considerations that can properly be ignored, led the Constitutional Review Group to recommend against the expansion of the Article 41 Family, and instead to include a provision similar to Article 8 of the Convention recognising a right to family life, with application to marital and non-marital families. The challenges of definition are a common and perhaps unavoidable problem of law making, but these challenges are particularly difficult if change is sought to be achieved by a single sweeping judicial decision.

154.     This is not just a familiar problem of line drawing, difficult though that would be. There can be little doubt that the jurisprudence which has developed over the last 50 years at a time of significant social change, has been unsatisfactory. This is in part attributable to the intractability of the subject matter, but also to the law. This has forced the courts, lawyers and the individuals concerned, to address delicate and complex personal issues with instruments which are at one and the same time crude and absolutist, yet extremely powerful.

155.     It would, in my view, lead to unhelpful uncertainty, if this Court were now to announce that a group such as the appellants, while undoubtedly a family in ordinary language, constituted a Family for the purposes of Article 41 with the further consequence perhaps, that some or all statutory differentiations on the basis of the marital status of a couple would be, without the need for further analysis, presumptively unconstitutional.

156.     Furthermore, the constitutional principle, which any such conclusion must necessarily rest upon, would raise many more questions. The principle underpinning a determination that the appellants, and perhaps other unit groups constituted a Family for the purposes of Article 41 irrespective of marital status, must necessarily be that the constitutional protection of the Family must extend beyond the marital family, and to - it must be hypothesised - any unit or grouping that can be said to provide some or all of the benefits which marriage and the marital family have been understood to provide to the members themselves, and society as a whole. If so, and quite apart from the problem of line drawing and definition already discussed, it would be difficult to be confident that any judicially developed principle could, or should, be confined to cases of relatively lengthy and stable couple pairing arrangements like that of the O'Meara's in this case. One lesson of the rapid pace of social change in the western world, including Ireland in the last half century, is that legislation which may be incremental and, to some extent, experimental, may be better able to respond to changing circumstances, than supposed judicially constructed constitutional principle which must apply to all cases in all circumstances.

157.     The very fact that the Constitution limits the Article 41 Family to marital families, even interpreted as it has been, may give rise to issues of interpretation and application in some cases. Even if it did not have any practical consequence, its terms might still be regarded as significant. What the Constitution says, and the story it tells about our society, is important in and of itself. There may be good reasons to debate what the Constitution should now say, and indeed the Court was informed by the Attorney General in the course of argument, that proposals to amend Article 41 in this regard were under consideration, and proposals are before the Oireachtas as of the date of delivery of this judgment. But, the forum for any debate on what the Constitution should say in this or any other regard is not the Court. There must be a limit to the permissible interpretation of the Constitution, and in my view, and with great respect to those who take a different view, I consider that to decide now that the Article 41 Family can include both marital and non-marital families alike, exceeds it.

O'B. v. S.

158.     The contention that this Court should now formally overrule O'B. v. S. [1984] I.R. 316 ("O'B. v. S.") may be dealt with more shortly. That case was cited in passing in a single sentence in the written submissions in this case, along with a number of others, for the proposition that it was permissible to make distinctions on the basis of marital status. It did not play any significant role in the argument of this case and was not relied on as part of the Attorney General's argument in defence of the statute. Accordingly, it does not appear necessary to consider it, still less overrule it, in order to come to a conclusion in this case. Furthermore, the precise effect in law of the decision in O'B. v. S., was reversed within three years by the passage of the Status of Children Act, 1987. The definition of "issue" for the purposes of s. 67(3) of the Succession Act, 1965, which was the subject of that case, has now been amended, and it is not clear to me what the effect of overruling the decision and presumably finding that s. 67(3) was, or is now, unconstitutional, would have. The wider effect of the decision in O'B. v. S. was also addressed by the 1987 Act which removed all provisions in statute and common law distinguishing on the basis of legitimacy and illegitimacy, and which as the long title explained was intended to "equalise the rights of children". As far as constitutional interpretation goes, the approach to Article 40.1 set out in O'B. v. S. has long since been superseded by Donnelly and the cases on which it builds, including NHV v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 IR 246 and Murphy v. Ireland [2014] IESC 19, [2014] 1 IR 198, and others. The decision in this case is, indeed, itself an illustration and application of that approach. If a question as to the authority of O'B. v. S. were to arise today (and it is hard to see how it could), then the Court would, in my view, have to consider the impact of Article 42A and it seems difficult to contend that the decision would have any force or effect after the introduction of that amendment. In the circumstances, I do not see that it is necessary to engage in the exercise of considering the correctness of the decision in O'B. v. S., by reference to the Constitution as it stood when the case was decided, and during the limited period during which it affected the law, in order to decide this case.

Remedy

159.     This case raises the familiar problem of a successful equality challenge to a provision which is found to be under-inclusive. The payment of benefit to widows, widowers or surviving civil partners is not challenged or said to be unconstitutional. Instead, the unconstitutionality found in this case, is that the benefit does not extend to Mr O'Meara. However, should the Court make a declaration that s. 124 of the 2005 Act is invalid having regard to the Constitution, that would deprive those who are acknowledged to be entitled to WCP, a beneficial statutory right, to which it is not suggested they are not entitled. Accordingly, I would make a declaration that s. 124 of the 2005 Act is inconsistent with the Constitution insofar as it does not extend to Mr O'Meara as a parent of the second, third and fourth appellants. I would also make an order of certiorari quashing the decision of the Minister to refuse Mr O'Meara WCP. This is not a complete solution for the appellants since it would require a legislative amendment to positively provide for benefit in their case. It remains a matter for the Oireachtas to consider how best to make provision for benefit consistent with the provisions of Article 40.1 of the Constitution.