O'Meara & Ors v The Minister for Social Protection & Ors (Approved)

O'Donnell J (as he then was) also delivered a judgement in Michael and, during the course of the hearing before me, counsel for the applicants opened several passages from that decision (in particular, paras. 1; 7; 8; 17-19; 21-22 and 26). The current Chief Justice made clear that he agreed with the decision of Dunne J but Stated (at para. 1) that “ …the case raises difficult issues of the application of the equality guarantee of the Irish constitution, and for that reason may merit further consideration”. Among his observations was to State (at para. 8) that “… in the case of Child Benefit , it is important to recognise that there is no sense, either legal or factual, that the benefit can be said to belong to the child” and, just as Dunne J had done, he quoted from the Court of Appeal's decision in that regard (Hogan J).

The foregoing fortifies me in the views I have expressed earlier in this judgement, to the effect that there is no question of the payment which is at issue in these proceedings belonging to the 2 nd to 4 th named applicants (but for a change in the marital status of their parents). Similarly, there is no question of the payment belonging to the children of someone who is currently in receipt of WCP and who was married to her or his deceased spouse.

Counsel for the applicants laid particular emphasis on the contents of para. 17 in Micheal , wherein O'Donnell J (as he then was) Stated the following:

Counsel for the applicants submitted that “ an equivalent question arises” in the present case. As I understand that, that question, according to the applicants, it is framed in the following terms: Whether the Oireachtas can exclude the 2 nd to 4 th named applicants for benefit on grounds of the marital status of their parents ?

In the manner already discussed, it seems to me that the nature of, and raison d'être for, Child Benefit , on the one hand, and WCP, on the other, are materially different. For the first to be payable at all, a child is very obviously, involved. For the latter to be payable, a child is not. Moreover, as a matter of common sense, there may very often be no dependent children involved where WCP is payable. That being so, it does not seem to me that WCP can reasonably be considered to be a benefit which is claimed in respect of a child .

I take this view, leaving aside, for present purposes, that factually and legally no child has a right to, or entitlement in, WCP. In other words, the nature of Child Benefit and its focus on the child seems to me to be so different from the nature and focus of WCP (which is on a bereaved spouse, or civil partner) that, in my view, the latter is not a benefit coming within the question re-framed by O'Donnell J (as he then was) in his judgment in Michael. The learned judge proceeded, from para. 18 onwards, to engage in the analysis of the question identified by him in para. 17 and he did so as follows:

It follows from this analysis that any claim here must be of indirect and, as it were, secondary discrimination. An otherwise permissible provision pursuing a valid objective within the decision-making power of the Oireachtas may nevertheless be found to be invalid if it interferes impermissibly with a right protected by the Constitution, even if that was not the direct objective of the legislation, but can nevertheless be said to be within its contemplation, or even a consequence of the legislation which is not too remote. Given the fact that the legislation specifically contemplates Child Benefit being paid in respect of a “qualified child” and that the intended object of the benefit is clearly to assist parents with the costs of child rearing, I agree that Emma and Michael in this case are fully entitled to challenge the operation of s. 246 insomuch as it affects them even indirectly….”

Even if I am entirely wrong in the view that, for the purposes of a consideration of the constitutionality of Chapter 18 of the 2005 Act, (and unlike the position in respect of Child Benefit as analysed in Michael ) WCP cannot be considered to be a benefit which is claimed in respect of a child, the distinction which underpins the qualification requirements in respect of WCP relates to the marital status of the recipient, namely, the first applicant.

Few law students will be unaware of the decision in Murphy v. Attorney General [1982] I.R. 241, in which the Supreme Court declared certain provisions of the tax code unconstitutional on the grounds that they potentially placed a higher tax burden on a double-income married couple than on a similarly placed cohabiting non-marital couple, contrary to Article 41 of the Constitution. It is well settled that the State is entitled to differentiate between marital and non-marital couples without breaching Article 40.1. Indeed, the following is stated at para 34 of the applicant's legal submissions:

Later in this judgment, I will refer to the Donnelly decision (i.e. Donnelly v. Minister for Social Protection [2021] IECA 155 ; and the Supreme Court's decision in the same case, which was delivered on 4 th July 2022).

Reference in the applicants' submissions to the Nicolaou case was, of course, to The State (Nicolaou) v. An Bord Uchtala [1966] IR 567, wherein the Supreme Court ruled that an unmarried father (Mr Nicolaou) and his child were not part of a family recognised by Article 41. In that case the child's mother had placed her child for adoption without Mr Nicolaou's knowledge or consent and, in response to the father's objection that this infringed his family rights pursuant to Article 41, the Supreme Court held that the father could not plead rights afforded by Article 41 as he was not a member of a constitutionally-recognised family. This outcome derived, according to the Court, from the wording of Article 41 itself.

To say the foregoing is not to denigrate in any way the love and care of the applicants for each other, in the context of being what, it seems fair to say, most people in Irish society would, without hesitation, regard as a ‘family'. It is simply to recognise that in Article 41.3.1, the State pledges “… to guard with special care institution of Marriage, on which …” it states “… the Family is founded …”.

Although several authorities could be cited, it is sufficient to refer to the Supreme Court's decision in O'B v. S [1984] 1 IR 316, wherein, as the head-note confirms, it was held: “ 5. That the ‘family' recognised in Article 41 of the constitution is the family which is based on a valid marriage in accordance with the law of the State”.

It is also fair to say that, given the special place of marriage in the Constitution ( per Article 41.3.1) the ‘starting point' is that it is not contrary to Article 40.1 for the State to treat married and non-married persons differently. By that I mean, where the Oireachtas draws such a distinction (reflected, for present purpose, in the Chapter 18 requirements for entitlement to WCP) the position is not that the legislation is unconstitutional, or has a presumption of unconstitutionality, but that it might be ‘saved' by Article 41.3.1.

It seems to me that the contents of paragraph 34 of the applicants' legal submissions concede, very appropriately, that the distinction between married and unmarried persons, which is reflected in the qualification requirements in Chapter 18 of the 2005 Act, is (i) rational; (ii) not arbitrary or capricious; and that (iii) the aim of supporting and encouraging marriage is prima facie rationally related to the exclusion of cohabitants from WCP. That being so, I have great difficulty identifying a basis for this court to subject the distinction at the heart of this case to the type of “close scrutiny” to which the learned judge referred in para. 18.

With regard to the Chief Justice's analysis in para. 19 of Michael, I ask rhetorically: How can Chapter 18 of the 2005 Act “ be found to interfere impermissibly with a right protected by the Constitution”, given that the aim of supporting and encouraging marriage (an institution which is given special status in the Constitution) is prima facie rationally-related to the exclusion of cohabitants from WCP?

The foregoing seems to me to be a fundamental difficulty with the applicants' case, even if I am wrong in the view that (in contrast to Child Benefit ) the “ intended object” of WCP is not to benefit children (O'Donnell J describing Child Benefit as “clearly to assist parents with the costs of child rearing”, which, in my view, simply cannot be said of WCP, given that parental status is irrelevant to WCP entitlement). At para 22 in Michael, the current Chief Justice Stated inter-alia the following:

In the present case, Counsel for the applicants acknowledges that the claim advanced by the 2 nd to 4 th applicants is that of indirect discrimination. He makes equally clear that he regards as the appropriate comparators the child or children of a marital family (or the children of persons in a civil partnership). Thus, the discrimination alleged is between citizens. Although at ‘first blush', the reference to “ marital status ” in the final sentence of para. 22, might suggest that “ the close scrutiny of the court ” is essential, this does not seem to me to be so, given that, in the manner previously discussed, the distinction between married and unmarried persons which underpins the qualification requirements in Chapter 18 of the 2005 Act is rational and not arbitrary or capricious. Moreover, the aim of supporting and encouraging Marriage is prima facie rationally-related to exclusion of unmarried cohabitants from WCP. Counsel for the applicants also laid particular emphasis on para. 26 of the decision by O'Donnell J (as he then was) in the Michael case, wherein the learned judge stated:

Counsel for the applicants suggested that it is necessary for this court to engage in the close scrutiny referred to in Michael and that this court is presented with a difficult balancing exercise. I am not convinced that this is so in the present case, given that (i) the legislation under challenge is not directly discriminatory; (ii) the distinction which underpins it is rational and not arbitrary; and (iii) the aim of supporting and encouraging Marriage (which is an institution enjoying a special and privileged position under the Constitution) is prima facie rationally-related to exclusion of unmarried cohabitants ("cohabitants") from WCP.

Mr Justice O'Donnell made clear in Michael how an indirect discrimination claim, of the type which the 2 nd to 4 th named applicants bring, might be maintained. He did so at para. 19 in the following terms:

In the present case, the applicants have adduced no evidence to support the proposition that the indirect effect (which they say amounts to discrimination contrary to Article 40.1) was “ the object of the legislation ”. Indeed, no such arguments is even advanced. The object of Chapter 18 is plainly not to place minor children of an unmarried couple in a different category to minor children of married parents. Legitimate choices made by parents may have knock-on consequences for their children, but that is true with respect to a whole swathe of issues. The object of the legislation at issue is to provide support to the surviving member of a couple (with the entitlement to support not depending in any way on the existence of a child or children). Other pieces of legislation have children as their object and focus. This is not the position here.

Furthermore, it was neither argued nor established that Chapter 18 is “ motivated by any prejudice or stereotyping”. In addition, no evidence whatsoever has been put before the court which relates to the impact of Chapter 18 on any others or the “ class of person ” said to be affected, still less “ something substantial” in the sense referred to by the current Chief Justice in Michael.

Earlier, in this judgment I made reference to contents of para. 24 of Mr Justice O'Donnell's decision (in the context of the correct comparator) and it is appropriate, at this juncture, to quote that paragraph verbatim because the analysis in it provides an invaluable guide to the assessment of the applicants' claim in the present case:

Chapter 18 of the 2005 Act makes an explicit differentiation or discrimination between someone in the position of the first applicant and someone who has lost their spouse, as defined in the 2005 Act. Their personal pain is no different, but their marital status plainly is. The former qualifies for WCP by virtue of their marital status, which is a status different to that of the latter. What was true in respect of Child Benefit is just as true in respect of WCP. In other words, the distinction based on marital status (which is reflected in the qualification requirements in Chapter 18) can in my view also be described as “ a perfectly permissible distinction based upon rational grounds and a legitimate State objective ”. No concession by the first named applicant is necessary for this court to state the foregoing with confidence. Thus, the 2 nd to 4 th applicants are different from the comparator (the surviving spouse of a marriage) in respect of the claimant (their unmarried father) through whom they hope to benefit. There is no unlawful discrimination contrary to Article 40.1. Rather, the difference in terms of treatment is a consequence of and rationally related to a legitimate and permissible distinction which is reflected in Chapter 18. As Mr Justice O'Donnell noted “… it can be seen as a performance of the requirement, to treat like persons alike in relation to that aspect in which they are alike, and differently in relation to those qualities or features in respect of which they are different.” In short, it is permissible for the State to differentiate between, on the one hand, a couple who chose to get married and, on the other, a couple who made a different choice. As a consequence of the permissible distinction, but very much a “side-effect” of the furtherance by the State of the legitimate aim of supporting and encouraging marriage, the 2 nd to 4 th applicants find themselves in a different position to the children of a married couple where one of the parties to the marriage has died. That does not render Chapter 18 unconstitutional, nor amount to unlawful indirect secondary discrimination.

What is not in doubt is that the applicant's argument is made, indeed can only be maintained, on the basis that (i) the legislation impacts the minor children, as opposed to their father, and (ii) is secondary in nature - in short, an indirect-discrimination argument. Such an argument was rejected by the Supreme Court in Michael as regards Child Benefit and, for the following reasons, I am satisfied that it cannot succeed in the present case with regard to WCP.

First, and as I mentioned earlier, a fundamental element of the argument advanced is that, but for marital status, the children in question would, “ through their father” be “ entitled to the payment”. This is not so. No child has any right or entitlement to WCP, irrespective of the marital status of their parents.

Second, the applicants' case is premised on the basis that the purpose of the WCP is to support “bereaved families” (the phrase used in para. 10 a. of the Statement of Grounds). I do not agree. It seems to me that the purpose of the WCP is to provide support to a bereaved spouse (as defined in the 2005 Act) in recognition of the fact that the surviving individual has lost someone who had legal obligations to them in the context of their marriage, thereby supporting and encouraging the institution of marriage and the fostering of the legal and social bonds derived from marriage. The loss of a long-term life partner is no less cruel or painful, but it cannot be controversial to say that there is a distinction between the public nature, formality, legal obligations and status of marriage which is reflected, inter-alia, in the purpose of the WCP which has the bereaved spouse as its object. As to the purpose or rationale for the WCP, this court is entitled to accept the averments made by Ms Murphy at para. 5 of her 24 November 2021 affidavit, which I quoted verbatim earlier in this decision.

Third, it seems to me that the assessment of alleged discrimination must be undertaken by reference to a qualified person , namely, a person entitled to receive the benefit. At paras. 64 and 65 of her judgement in Michael, Dunne J observed that the approach taken by the Court of Appeal was to consider whether an Irish citizen child resident in the State could be deprived of Child Benefit by reason of their parent's immigration status and whether this offended Article 40.1, in circumstances where other citizen-children resident in the State could avail of Child Benefit thorough their parents or guardians. The Court of Appeal concluded that the approach of the Oireachtas amounted to an inherent unfairness and lack of proportionality. The Supreme Court made clear that this was not the correct approach.

Dunne J held that the Court of Appeal's conclusion could only have been reached on the basis that the child in question had an “ entitlement to Child Benefit” but this was not the case. In para. 65 she made clear that Child Benefit is “ … A payment made to a qualified person - that is the person with whom the child normally resides. The fact that the child is a citizen of Ireland is not the determining feature.” In para. 68, the learned judge stated that: “ The restriction of payment to those who are habitually resident is neutral in the sense that it applies to all applicants for Child Benefit equally” later stating that “ The requirement in relation to habitual residence is addressed to the qualified person only. The legislation at issue relates to a benefit payable to the qualified person and not the qualified child. That being so, it does not appear to me to be appropriate to compare the position of Emma, a citizen child, with the position of any other citizen child. As pointed out by O'Donnell J in the passage above [Murphy v. Ireland para.28] the principle of equality requires that like persons should be treated alike. As the payment of Child Benefit is to a qualified person, the like person for this purpose should be another qualified person, not the child whose existence may give rise to the payment. ” (emphasis added)

The analysis by the Supreme Court in respect of Child Benefit applies equally with respect to the 2 nd to 4 th applicants' claim regarding WCP, in my view. The requirement in relation to marital status is addressed to the qualified person only, namely, the first applicant. The legislation at issue relates to a benefit payable to the qualified person (the first applicant) and not the qualified children (the 2 nd to 4 th applicants).

It is true that s. 127 (1) (a) and (b) of Chapter 18 makes provision for increases in the weekly rate payable in respect of any “qualified child” under, or over, 12 years of age. That does not, however, mean that, what Chaper 18 calls a “qualified child”, is or becomes the qualified person entitled to receive the payment i.e. the beneficiary. The surviving spouse (or civil partner) as defined in the 2005 Act remains at all material times the qualified person i.e. the beneficiary.

As I mentioned earlier, s. 127 (2), (3) and (4) goes on to provide for increases in the weekly rate where the beneficiary “has attained pensionable age and is living alone”; “ has attained the age of 80 years ”; or “ has attained pensionable age and is ordinarily resident on an island ”. The foregoing fortifies me in the view that the purpose and object of the legislation challenged in these proceedings is the support of a bereaved spouse, not a bereaved family, and it is also perfectly plain that the Oireachtas contemplated that those benefiting from the support might well be older persons, including those who had attained retirement age (persons who, as a matter of common sense, would be less likely to have young children residing with them). My point is not that the Oireachtas ignored the possibility of a bereaved spouse having dependent children (this was addressed by way of an increase, but in the context of a greater number of increases also being provided for pensioners living alone, as well as beneficiaries over 80).

Returning to the analysis by Dunne J, and applying it to the present case, it seems to me that, because the payment of WCP is to a qualified person, the correct person by way of comparator should be another qualified person, not the 2 nd to 4 th applicants.

Nor, in my view, is it fair to say that in the present case it is the existence of a child or children which gives rise to the payment of WCP. It does not. That was true in Michael in respect of Child Benefit, where the existence of a child was a sine qua non for any payment entitlement. In the present case, it is the existence of a bereaved person who has lost a spouse (someone who owed them legal duties by virtue of their marriage) which gives rise to the payment. The existence of a child is certainly not a pre-requisite of a person's entitlement to WCP. The existence of a child simply gives rise to a marginal increase on the payment, the object of which is to support the bereaved spouse. With respect to the appropriate comparator, Dunne J put matters as follows at para. 101 of her judgement in Michael:

In short, there is no evidence before this court of any difference in the treatment of children. Rather, a rational distinction is made between adults who decided to enter into marriage, and those did not.

Without for a moment being in any way critical of what was doubtless a valid decision not to enter into a marriage contract, it seems to me to be objectively true to say that the proximate cause of what the 2 nd to 4 th named applicants' regard as an unconstitutional denial to them of a benefit, is the perfectly valid, but very personal, decision-making by their parents.

On any analysis, a decision not to enter into a marriage contract, but to cohabit as committed long-term partners, is a private decision deserving of society's and the law's respect. However, that fact also raises a significant point of distinction between the facts at play in Michael and those in the present case, which seems to me to be appropriate to refer to given that the applicants lay such emphasis on principles outlined in Michael, particularly in the decision by O'Donnell J (as he then was).

It is fair to say that, in Michael, it was not within the ‘gift' of the parent seeking Child Benefit to alter, unilaterally, her immigration status. It was not for, example, open to her to acquire citizenship ‘for the asking'. The position is otherwise in the present case, with regard to marriage. It was entirely within the gift of the parents of the 2 nd to 4 th named applicants to marry at any stage (in particular, during the first 19 of their some 20 years together). Had they done so, the qualification requirements under Chapter 18 would have been met. I want to emphasise again and in the very clearest of terms that to say the foregoing is not a criticism. The last thing this court would wish to do is to add to the pain of any of the applicants. I mention the foregoing, however, because it seems to me to be a relevant matter of fact which emerges from the evidence in this case i.e. what might be called the decision-making power or autonomy or ‘agency' of the parent(s) is a significant difference to the situation which pertained in Michael but illustrates that the indirect discrimination argument made by the 2 nd to 4 th applicants would simply not arise, had their parents made different but equally valid decisions, which were at all times theirs to make.

The evidence before this Court includes averments by the first named defendant to the effect that a conscious decision was made not to marry and the reason for this decision was also averred to. At para 8 of Mr O'Meara's 25 August 2021 affidavit, he avers inter-alia that: “ Michelle's parents split up young, so she never wanted to get married. We were just happy to stay going the way we were.” The foregoing was obviously a very personal decision made by the relevant couple and one deserving of respect. It did, however, have consequences, in that it meant the couple - irrespective of what was plainly their enormous love for and commitment to each other - did not enter into the institution of marriage and, thus, did not assume the particular rights and obligations between spouses which the entering into the institution of marriage, and what has been called the ‘marriage contract', entails.

It is also clear from the evidence that, having lived together as a committed and loving unmarried couple for some two decades, a different decision was taken with regard to marriage, i.e. they decided to marry. Once more, this was a highly personal and private decision which was theirs alone to make and just as deserving of respect as any decision not to, but a decision which highlights that it would represent a change in their status (including in the context of Article 41.3.1). The latter decision is also averred to para. 8 of Mr O'Meara's affidavit. There, he explains that “ We had decided to go to a registry office and do something quiet. But with COVID-19 it was delayed and of course we weren't expecting this.” Mr O'Meara went on to aver that the couple still thought that they would “ still have time to sort out marriage”. Tragically, this proved not to be so, and the first applicant's late partner was cruelly taken before the couple could get married.

During the hearing and in the applicant's submissions, very significant reliance is placed on the decision of the UK Supreme Court In re McLaughlin [2018] 1 WLR 1441. As to the facts, the headnote makes clear that the case concerned the parents of 4 children who had lived together for 23 years before the father's death, but had never married. He had made sufficient national insurance contributions for the mother to have been entitled to, inter alia , widowed parents allowance had they been married. After his death her claim for widowed parents allowance was rejected on the basis that she was not a spouse as required by the particular legislation. The mother sought judicial review on the grounds that the legislation was incompatible with her rights under Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, read with Article 8 of, or Article 1 of the first protocol to, the Convention. A declaration of incompatibility was made. The Court of Appeal in Northern Ireland allowed an appeal. For the majority, Baroness Hale allowed the appeal against that decision and made a declaration that the relevant legislation was incompatible with Article 14 of the convention, read with Article 8 , insofar as it precluded any entitlement to widowed parents allowance by a surviving unmarried partner of the deceased.

Although counsel for the applicants quoted at some length from McLaughlin, the facts in that case disclose a fundamental difference with respect of the legislation which was at issue. At para. 1 of the judgement Baroness Hale makes clear that “ Widowed parent's allowance is a contributory social security benefit payable to men and women who are widowed with dependent children .” (emphasis added). In other words, to be entitled to the relevant payment, the widow or widower had to have dependent children. That is utterly different to the situation which pertains as regards WCP. At para. 26 of McLaughlin, the following was made clear:

In my view that analysis is correct. Widowed parents' allowance is only paid because the survivor is responsible for the care of children who were at the date of death the responsibility of one or both of them. Its purpose must be to benefit the children. The situation of the children is thus an essential part of the comparison…”

The foregoing highlights the crucial distinction between the payment at issue in McLaughlin, and the WCP payment which is the subject of these proceedings. In the High Court, the claim for bereavement payment (the receipt of which did not require the existence of a child) failed and was not appealed. The payment at the heart of McLaughlin was “ only paid because” of the existence of dependent children, for whom the survivor was responsible. That is fundamentally different to the qualifying criteria for WCP. Whereas in McLaughlin the court could say of the payment that its “ purpose must be to benefit the children”, that simply cannot be said of the WCP.

It is perfectly clear from a reading of McLaughlin that, in circumstances where the relevant benefit was not payable unless the survivor had dependent children, the UK Supreme Court was dealing with a benefit squarely aimed at benefitting children . That is simply not the situation as regards WCP. It also seems to me that had the relevant benefit at issue in McLaughlin been one payable to a surviving adult, irrespective of their parental status, the decision of Baroness Hale is likely to have gone a different way. The court in McLaughlin Stated inter alia the following: -

I pause at this point to observe that it would be wholly inaccurate to say that WCP is a ‘benefit for a child which is channelled through their parent'. It is nothing of the sort. It is a benefit aimed squarely at supporting an adult who has lost a spouse who, by virtue of their marriage, owed them legally recognised duties and rights (leaving aside, for the purposes of the analysis, the love and affection common to all committed couples, regardless of martial status). Later (at para. 33) in McLaughlin , Baroness Hale stated the following: -

The ‘reasonable foundation' in the present case constitutes the particular status of marriage enshrined in our State's Constitution and the legitimate aim on the part of the Oireachtas to promote and support marriage. Indeed, Baroness Hale's judgment explicitly acknowledges the legitimacy of that aim in the context of ECHR jurisprudence. She put matters as follows from para. 36 in McLaughlin : -

The mere existence of a legitimate aim is not enough: there has to be a rational connection between the aim pursued and the means employed. Although this is not spelled out in the Strasbourg case law, it follows from the fact that the measure must pursue a legitimate aim . . .”

In the present case, there is both a legitimate aim and a rational connection between that aim and Chapter 18 of the 2005 Act, which constitutes a means of pursuing the aim. The distinguishing feature of McLaughlin was plainly that the payment at issue was directed to supporting children. As Baroness Hale made clear at para. 39: “ The allowance exists because of the responsibilities of the deceased and the survivor towards their children”.

The foregoing is simply not the case with regard to WCP. Baroness Hale went on at para. 39 to say that: -

The WCP has an entirely different purpose. It is not directed at supporting “families” nor is it directed at providing support to “families with children”. It is directed at supporting a bereaved spouse and is a payment to which they are entitled if they were married to the deceased. WCP is payable irrespective of whether there is any child or dependent child involved. Indeed, it seems uncontroversial to say that, in very many cases, there may not be. In my view, the facts in McLaughlin are so utterly different to those in the present case that McLaughlin adds nothing to the analysis of the issues at play in this case other than to emphasise the legitimacy of the aim of promoting the institutions of marriage and civil partnership, which aim is reflected in Chapter 18 of the 2005 Act.

At this juncture, it is also important to State that McLaughlin has previously been distinguished and, in my view very properly so, in a judgement delivered on 19 March 2021 by Ms Justice O'Regan in McGovern v. Chief Appeals Officer [2021] IEHC 202 , wherein my learned colleague dealt with the self-same legislative provisions (Chapter 18 of the 2005 Act) as well as similar arguments made with regard to persons in the self-same position as the applicants.

Regan J rejected a challenge to the same legal provisions which the applicants impugn in these proceedings. However, rather than simply deal with the present application on the basis that, in light of the ‘Worldport ' principles (see In re Worldport [2005] IEHC 198 ), the decision in McGovern is dispositive of the present claim, I felt it appropriate to engage in the more detailed analysis which is contained in this judgment. I did so, given the sophistication with which the case was argued on behalf of the applicants and lest any point was raised in the present case which was not raised and dealt with in McGovern.

McGovern concerned whether the applicant was entitled, in the circumstances of his case, to WCP (in accordance with Chapter 18 of the 2005 Act) under Irish legislation, under the Constitution, or under European law. It is entirely fair to say that the primary argument and one which takes up much of the judgement revolved around the recognition, or not, of a divorce obtained in another jurisdiction. The applicant's claim for WCP was disallowed on the basis that the divorce from his first wife (whom he married in 1982) was not recognised as valid in this State. The applicant had married a second time (in 1994) and that couple had two children (born 1999 and 2001, respectively. Sadly, his second wife died (in October 2016). Mr McGovern made the relevant application for WCP in November 2016 at (a time when his children were 17 and 15, respectively). Neither of those children were party to the proceedings which Mr McGovern commenced in 2020 (at a time when both had achieved their majorities).

It is clear, however, that Mr McGovern argued, inter-alia, that his two children were discriminated against, by virtue of the withholding of WCP. During the hearing before me, the court was provided, without objection, with a copy of the written submissions which had been made by the applicant in McGovern, and the following comprise verbatim quotes from those submissions:

Following the dicta of McLaughlin, Holman J stated in Jackson (case supra, at paragraph 57):

It is submitted, therefore, that the dismissal of the applicant's appeal and withholding of his widowers pension… unfairly and irrationally penalises and discriminates against his 2 children, who would otherwise be beneficiaries.”

In light of the foregoing, it seems clear that, although not the principal challenge in McGovern, what the applicants have argued in the present case was an argument which made, and failed, before this Court in McGovern . In my view nothing appears to turn on the fact that the sole applicant in McGovern was the person who, but for his marital status, would all things being equal receive the WCP (as opposed the situation in the present case where minor children are also parties to the proceedings), given what was argued in McGovern . Clarke J (as he then was) made the following clear in Worldport :

There is no question of McGovern having been decided in the absence of a review of significant relevant authority. Indeed, the principal authority relied on by the applicants in the case before this court, namely, the UK Supreme Court's decision in McLaughlin was specifically relied on by Mr McGovern in his unsuccessful application before Ms Justice O'Regan, as was the English High Court's decision in Jackson (which followed McLaughlin ). Furthermore, the judgment in McGovern discloses no clear, or any, error. Nor has any material length of time elapsed since the decision in McGovern was delivered. In short, there are no reasons, still less substantial reasons, for this court to come to a different view than expressed by O'Regan J in McGovern.

More recently, in the Supreme Court's decision in Kadri v. The Governor of Wheatfield Prison [2012] IESC 27 , Clarke J (as he then was) made reference to Worldport and to subsequent authorities which Mr Justice Fennelly had considered in a separate decision given in the same case. Mr Justice Clarke Stated (from 2.2) the following:

Guided by the principles in Worldport , as re-emphasised in Kadri, I cannot see any basis for departing from the previous decision made in the McGovern case. Indeed, it is fair to say that at no stage did the applicants address, specifically, the Worldport principles, by way of identifying what they contended to be the basis for departing from the decision in McGovern (a case which is not the subject of any appeal to the Court of Appeal or Supreme Court). As to what was decided in McGovern, it is appropriate to quote the following passages:

Conclusion

Plainly, neither the Court of Appeal nor the Supreme Court are constrained in the manner this court is. Although I regard myself as bound to follow the decision in McGovern, it will be clear from my judgment that, although required to follow McGovern , I have reached the same conclusions as the court came to in that case , having conducted a thorough analysis afresh, lest not doing so resulted in any point not being considered.

It is fair to say that the English High Court's decision in Jackson, upon which the applicants also rely, does not develop (but merely follows) the analysis in McLaughlin. Once again, the benefit at issue was materially different to the WCP. As to the facts, the claim was brought by an adult and his children who sought judicial review challenging the lawfulness of provisions in the UK Pensions Act of 2014 and the Bereavement Support Payment Regulations of 2017. The challenge was brought on the basis that the relevant legislation was discriminatory, and contrary to Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, read with Article 8 of the Convention and Article 1 of the first protocol thereto, insofar as the relevant payment was payable to a surviving parent with a dependent child where his spouse or civil partner died, but not where is unmarried cohabitee or non–civil partner died.

As p. 1449 of the decision in Jackson made clear, there were three payments referred to (see paras. 26 - 27) as follows. “BSP” (i.e. Bereavement Support Payment) did not depend upon the existence of a child. However, “WPA” (i.e. Widowed Parents Allowance) and “HRBSP”, (i.e. Higher Rate Bereavement Support Payment) both depended on the existence of children.

At para. 28 of his judgment, Holman J observed inter alia that: -

The foregoing highlights the very different factual situation at play in Jackson. Earlier in this judgment I noted, firstly, that WCP is payable regardless of whether any child is involved; and, secondly, even where there is a child, the increase provided for ( per s. 127 (1)) represents, in relative terms, a small fraction of the pension payment itself.

Furthermore, Holman J explicitly acknowledged at para. 37 of his decision in Jackson that: -

Again, the fact that to have a dependent child was a qualification requirement for the receipt of HRBSP renders Jackson of no assistance with regard to the determination of the issue which is before this Court.

At para. 44 in Jackson , the special status of marriage was explicitly acknowledged, wherein Holman J stated inter alia : -

The foregoing principles are central to the case before this Court and, in my view, create an unsurmountable obstacle for the applicants with regard to their claim that Chapter 18 is incompatible with the European Convention on Human Rights Act 2003. The reality is that Jackson provides no greater assistance than the decision in McLaughlin (and the latter provides none). Even if the decision in McGovern is not dispositive of the present claim (and I believe it is, having regard to the ‘Worldport ' principles), I am entirely satisfied that both McLaughlin and Jackson must be distinguished, given the very different nature of the payments which were at issue in those cases.

It is, perhaps, unnecessary to point out the long-established principle that legislation enacted by the Oireachtas enjoys a presumption of constitutionality (and there was certainly no dispute between the parties as to the foregoing principle). It is useful, however, to keep in mind the strength of that presumption because the corollary represents the formidable burden resting on an applicant who contends that legislation is unconstitutional. With regard to the foregoing, it seems appropriate to quote the observations of Ms Justice O'Malley in the Supreme Court's recent decision (of 4 July 2022) in Donnelly & Ors v. Minister for Social Protection & Ors (“ Donnelly ”)

Although a “balance of probabilities” test often features in proceedings on the civil side, that is certainly not the burden facing the applicants, who must clearly show that the legislation in question is unconstitutional. It is uncontroversial to say that the ‘bar' is set high, in particular, given that the legislation impugned involves decisions which were taken by the Oireachtas with regard to the spending of, obviously finite, public monies (see Lowth v. Minister for Social Welfare [1998] 4 IR 321 ). As O'Malley J put it in Donnelly:

In the present case, the 2 nd to 4 th applicants each contend that their right to equality has been infringed (contrary to Article 40.1). In approaching the case made by the applicants, this court must, however, also recognise the reality that legislation will often confer benefits on some, but not on others. At para. 167 of the learned judge's decision in Donnelly , Ms Justice O'Malley explained that:

Later, at para. 168, the learned judge added:

With regard to the facts, the first applicant (Mr. Donnelly) alleged that legislation which excluded his eligibility for a particular social welfare payment in respect of his severely disabled son (the second applicant) during a prolonged period when his son was in hospital breached Article 40.1. The payment in question (the domiciliary care allowance, or “DCA”) is payable in respect of a “qualified child”, being someone under 16 with a severe disability requiring continual or continuous care substantially in excess of the care and attention normally needed by a child of the same age. Of particular relevance to the case was that, in principle, DCA is not payable when a child is resident in a hospital if the cost of the child's maintenance there was met in whole or in part by the State. The appellants argued that the legislation created an unjustifiable discrimination against them, compared with parents caring for severely disabled children in the home. They argued inter alia that Mr. Donnelly and his wife did, as a matter of fact, provide care for between 8 and 12 hours a day, seven days a week, while their son was in hospital and that this level of care was considered necessary by the professionals treating him and liaising with their family. Mr. Donnelly gave up employment for this purpose and the family thereby lost income. Plainly the facts in Donnelly are markedly different to those which present in the present case but it is useful to quote verbatim paras. 200 and 201 of the decision of O'Malley J: -

I pause at this juncture to observe that the focus of the relevant payment at issue in Donnelly was squarely on the child, in stark contrast to WCP. The learned judge went on to say the following at para. 201: -

In the present case, this Court is dealing with a wholly different scenario, in that the first applicant accepts, very properly, that Chapter 18 of the 2005 Act, which excludes unmarried persons, is rationally related to the legitimate aim of encouraging and supporting marriage and, thus, the exclusion is neither arbitrary nor capricious when viewed objectively. For the reasons set out in this judgment, the second to fourth named applicants have not brought home any claim based on secondary indirect discrimination.

Another important principle, not in dispute in this case, is that the Court's role is not to seek to form its own assessment as to the measure or extent of any disparity. In the well-known case of MacMathuna v. Ireland [1995] 1 IR 484, the plaintiffs claimed that the abolition of a tax allowance for the children of married parents, and what were contended to be inadequate annual increases in social welfare allowances for the children of married parents, constituted unequal treatment in breach of Article 40.1, as well as a breach of Article 41. As the head-note of the case records, the Supreme Court held follows:

In Shackell v. United Kingdom (Dec) App No. 45851/99, 27 April 2000, the European Court of Human Rights considered a claim by a woman who commenced a long–term relationship with her male partner in 1978. The couple never married, but lived together until he died in 1995, aged 39, due to an accident at work. The couple had three children, born 1989, 1991 and 1994. The applicant's late partner was a self–employed builder who paid full social security and national insurance contributions as a self–employed earner. His contribution record was such that, had he been married to the applicant, she would have been entitled to social security benefits as his widow, upon his death. In 1996, the applicant submitted a claim for widow's benefits, which claim was rejected on the basis that the benefits could only be paid where the claimant had been married to the deceased. The applicant appealed the first instance refusal, arguing that a breach of Article 8 of the European Convention on Human Rights (“the Convention”). Her appeal was rejected by the Social Security Appeal Tribunal in Britain. A further appeal was dismissed, at the domestic level, by a social security commissioner in 1998. The applicant was refused leave to appeal to the UK Court of Appeal and the ECtHR considered the applicant's claim that the legislation in question was incompatible with Article 14 ECHR when read in conjunction with Article 8 and Article 1 of Protocol 1. On internal p. 5 of the decision in Shackell, the court put matters as follows: -

I pause at this juncture to observe that the foregoing dicta applies equally to the situation of the first applicant in the case before this Court. The decision in Shackell then continued: -

The foregoing applies equally in the present case and illustrates, definitively in my view, that the applicant's claim which was made by reference to the ECHR cannot succeed. Moreover, it is worth recalling that the decisions in both McLaughlin and Jackson explicitly acknowledge the special status of marriage in Strasbourg jurisprudence as well as the margin of appreciation enjoyed by States to recognise the special status of marriage. In other words, insofar as the ECHR argument made by the applicants, the relevant analysis in both McLaughlin and Jackson is squarely against them. Before leaving the Shackell decision, it is useful to note that the applicant further argued that her children were being discriminated against, in violation of Article 8 taken in conjunction with Article 14 of the Convention. The applicant argued that the refusal to pay her widow's benefits in respect of her children had a direct financial consequence on her family life. This argument was rejected in the following terms, as is clear from para. 2 on internal p. 6 of the Shackell decision: -

The foregoing is just as true with regard to WCP, namely, “ It is not related to the status of the children” . Rather, WCP is payable irrespective of whether there are any children involved and, in the manner previously discussed, it seems uncontroversial to say that given the likely age profile of a great many of the potential recipients, the existence of young or dependent children will be the exception, rather than the norm. Regardless of those observations, the decision in Shackell comprises a clear statement of the law from the perspective of the Convention and presents an insurmountable problem for the applicants in the present case.

It is not for a moment to criticise the applicants or their advisors to say that no evidence was put before this Court in relation to the position of any other persons who are said to be adversely affected by legislation which the applicants claim to be unconstitutional. This is not to suggest that the absence of such evidence was a determining factor in terms of the outcome of this case. It does seem fair, however, to observe that it is not possible, from a mere reading of the statute itself, for this Court to have even a general sense, still less an accurate understanding, of the number of persons in a similar situation to the applicants or the contended for effect on them of so being. Thus, although this is a claim which was not run on the basis that the first named applicant, alone, had a stateable claim (rather, it was a case alleging secondary indirect discrimination of his children, albeit in the context of their family unit) there was no evidence before this Court as to the scale of what was said to be this allegedly unconstitutional secondary discrimination. By contrast, there is discernible from the face of the legislation at least some sense of its scale in terms of the persons to whom Chapter 18 is directed. Its terms make it clear that it is directed to every married couple (and civil partnership) in this State.

All of us will some day have to face our end. For a married couple, this will inevitably involve the passing of one marital partner, before the other (barring, say, a tragic accident which claims both lives simultaneously). Thus, without specific evidence having been adduced, and none was necessary, the court can readily see that the support facilitated by Chapter 18 is extremely wide in scale, given that, on its face, it has the potential to apply to 50% of married persons, and 50% of those in civil partnerships (i.e. the survivors) throughout the State.

The foregoing takes nothing away from the heart-breaking tragedy experienced by the applicants. Rather, it illustrates that the legislation in question is not directed towards persons in their situation, but to a very specific and plainly very large but different cohort of society. It also illustrates the role of the Oireachtas in terms of the delicate exercise of decision-making in respect of finite funds, be that in furtherance of legitimate social policy objectives or in terms of meeting particular needs. Making such decisions is not a role which this Court can legitimately play.

According to counsel for the applicant, the case nets down to, on the one hand, a marital family finding themselves entitled to a non means tested sum and, on the other hand, an equivalent family, but not based on marriage, being disentitled to the same sum, notwithstanding the latter having duties to each other and to their children which are equivalent to the former. It seems to me that there are two fundamental flaws in this submission. First, the proposition assumes that the aim of the WCP is to support families. It is not. The legislation is aimed at providing support to a bereaved spouse following the death of someone they were married to. Children may or may not be a feature (and very often not, it seems fair to say, given the likely age profile of the majority of those whom the Oireachtas had in mind when enacting Chapter 18 of the 2005 Act).

Second, the foregoing submission posits as comparators a marital family versus a family not based on marriage. These are not the appropriate comparators. The appropriate comparators are, on the one hand, someone entitled to receive the benefit because they meet the qualification requirements in Chapter 18 (i.e., for present purposes, a married person who has lost their husband or wife) and, on the other, an unmarried person who has lost their life-partner. There is, of course, an added complication, namely, the question of cohabitation.

On the facts before this Court, the first applicant cohabited with his partner of 20 years who was taken from him and their children in the cruellest of fashions. In the manner examined earlier, cohabitation is not a qualification requirement for the entitlement to WCP. This is because, by entering into the marriage contract, the relevant parties assume legal rights and duties towards each other. It is that institution which the legislation legitimately seeks to support and promote. When persons are married, they do not cease to have those legally-recognised duties to each other, even if they have ceased to cohabit.

I mention the foregoing because, although the first applicant is someone who did, in fact, cohabit with his life-partner, there will inevitably be situations in this State of persons who were in long term committed relationships and who cohabited with their partner but, for whatever reason, have ceased to cohabit prior to the death of that partner. In principle at least, it seems uncontroversial to say that there may well be cases where unmarried persons enjoyed a committed long term relationship as cohabitees, but where that relationship ceased and cohabiting ended many years before the death of one of them. I mention the foregoing because it seems to me to speak to certain practical issues as follows.

In submissions, counsel for the applicants contended that, when viewed objectively, “ there is no rational basis for excluding these people ” from receipt of the payment in question. When I asked counsel to clarify who the words “ these people ” referred to (i.e., was it a reference to the second to fourth applicants alone or did the phrase refer to all applicants?), his response was to the effect that “ Article 8 of the Convention bolts all applicants together as a unit ”. Elsewhere in submissions, counsel for the applicants contended that “ Once children are involved, Article 8 family life rights are engaged, as is Article 1 of Protocol 1 concerning property rights ” and the gravamen of the submission was that, as regards the adverse effect of the impugned legislation and the entitlement to relief: “ The first applicant is bound to the children, and they to him”. Indeed, amongst the submissions made on behalf of the applicants was to contend that “ By excluding cohabiting couples, it raises a serious issue of treating the children as illegitimate under the law”.

The foregoing brings me to the practical issues which would inevitably arise, were the applicants correct. The logic of the case advanced by the applicants, even in its refined form (which acknowledges that the first applicant has not been discriminated against) is that the WCP is properly payable to all, regardless of marital status. That being so, the inescapable logic of the applicant's argument is that even if the deceased had not cohabited with their partner for years, or decades, the pension was payable (subject only to social insurance requirements being met). As we know, to have a child is not a qualification requirement for receipt of WCP and, thus, the logic of the applicant's argument is that WCP is also properly payable to an unmarried person who never had children with their partner, irrespective of how many years, or decades earlier the couple ceased to cohabit.

Two comments seem appropriate in relation to the foregoing. First, the logical consequences, were the applicants correct (and, with respect, I am entirely satisfied that they are not) would represent ‘policy' decisions which are the exclusive preserve of other branches of government. Moreover, it would represent, in substance, the allocation of finite resources to persons and groups in circumstances where the need for or appropriateness of providing such support has not been determined by the Oireachtas. It seems to me that to do what the applicants contend for, would involve this Court violating the separation of powers principle and interfering, impermissibly, in the carefully constructed architecture of the State's social welfare system, of which the WCP represents a part. It would, in substance, be for this court impermissibly to involve itself in the difficult task, entrusted to the Oireachtas, of making decisions as to who is to obtain the benefit of scarce public resources. Second, these (albeit theoretical) consequences are in stark contrast to the legitimate aim of Chapter 18 itself, namely the support of marriage . The consequences sketched out above undermine that legitimate aim of the Oireachtas, highlighting for me that, no matter how well argued and despite the enormous sympathy this Court has for the applicants as individuals, this is a claim which must be dismissed. Why this is so can be summarised succinctly, as follows, i.e. for the reasons explained in this judgment, this court cannot accept the submission made on behalf of the applicants that the reason for WCP “ is to protect the family which includes the children ”. That is not the reason for or aim and focus of WCP. Nor was this case ever about families or the applicants' family. This case hinges on a legitimate decision made by the State to support, not families, but those who made the choice to enter, for present purposes, the marriage contract (thereby assuming legal rights and obligations inter se as married persons) where their spouse has died.

By way of a final word, I want to emphasise, lest it not already be clear, that nothing in this judgment is intended either to cause further distress to the applicants or to suggest for a moment that their grief and pain is in any way less than the loss experienced by a family where a married parent dies in such tragic circumstances. As commonly understood in modern Irish society there are many forms of family and ‘family unit', and the family unit where the relevant adults have made a choice not to marry makes a valuable contribution to Irish society, insofar as its bonds are those of mutual love and affection, care and support. Doubtless this description applies to the first named applicant's relationship with his late partner and, indeed, to the family unit which now comprises of all the applicants in these proceedings, for which this court has nothing but respect. The sincere wish of the Court is that the mutual love and affection of the applicants will help them to achieve some measure of healing and happiness in the future.

On 24 March 2020 the following statement issued in respect of the delivery of judgments electronically: “The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.” The parties should communicate forthwith. In default of agreement between the parties on any issue, including the question of costs, short written submissions should be filed in the Central Office within 14 days.