FLAC welcomes landmark Supreme Judgment on Equal Treatment for Parents and their Children regardless of marital status

22 January 2024

• The Supreme Court has unanimously upheld an appeal brought by John O’Meara and his children which challenged a refusal to award them a Widower’s Pension. Mr O’Meara applied for the payment after his partner of almost two-decades, Ms Michelle Batey, tragically died from Covid-19 in 2021. The family were represented by FLAC.
• The Court overturned the earlier decision of the High Court and held that the social welfare legislation gives rise to unconstitutional discrimination against the O’Meara family.
• The Chief Justice stated: “[T]here 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.”
• FLAC is encouraging bereaved non-marital families with dependent children to apply for the payment as soon as possible.
• The judgments highlight the need to expand the constitutional definition of the family beyond the marital family and, in particular, for the Government to give effect to a more inclusive definition through legislation.

Commenting on the judgment delivered this morning, Sinéad Lucey, FLAC Managing Solicitor, stated:

“This is the first judgment of the Irish Supreme Court which has found that legislation which distinguishes between marital and non-marital families cannot be justified and is contrary to the constitutional guarantee of equality. The judgment underlines that all children are equal irrespective of their parents’ marital status. Mr O’Meara and his family were hugely brave in taking this important case which will have a significant positive impact for other families in similar situations. I would encourage anyone in such a situation and who has dependent children to seek advice and to apply for a survivor’s pension now – so as to preserve any ongoing entitlement which they may have as a result of today’s decision. Surviving partners without dependent children may have to wait until the introduction of amending legislation to establish whether they will be entitled to the payment.”

Eilis Barry, FLAC Chief Executive, added:

“This historic judgment affirms the equality of all children and parents before the law. It requires the Government to re-examine the legislation concerning entitlement to survivors’ pensions. FLAC would encourage them to take an inclusive approach to this process and to engage with relevant organisations such as Treoir to address the gaps in the existing survivor’s pension scheme.

However, the decision of the Chief Justice confirms that the constitutional protection of the family under Article 41 is confined to the marital family. FLAC supports constitutional reform to bring about the expansion of the existing protections to diverse families. Today’s decision makes clear that legislation will be needed to give effect to any new constitutional provisions in the first instance in areas such as social welfare, tax, succession and in the definition of ‘durable relationships’. FLAC has repeatedly called for the publication of draft legislation outlining the changes that the proposed ‘family’ amendment would give rise to.”

John O’Meara stated:

“This decision recognises that my children and I are a family like any other, and that the treatment we endured over the past number of years was unjustified discrimination at the hands of the State. At the time when we most needed support from the State, we were refused it only because I was not married to my partner of almost 20 years before she died. It is a huge relief to know that no one else in a similar situation will have to endure the same discrimination.

I would like to thank FLAC, Derek Shortall SC and Colin Smith BL for their hard work and perseverance in achieving this outcome.”

ENDS/

 

Flac (Free Legal Advice Centres) is an independent human rights and equality organisation, which exists to promote equal access to justice. As an Independent Law Centre, FLAC takes on a number of cases in the public interest each year and operates a Traveller Legal Service, Roma Legal Clinic and LGBTQI Legal Service. FLAC also operates a legal information and referral telephone line and a nationwide network of legal advice clinics where volunteer lawyers provide basic free legal advice.

The decision of the Supreme Court may be access here: https://www.courts.ie/view/judgments/d53e1be2-0f47-4e82-846f-6e6b1175b1d3/c12599c6-a865-4490-9a87-026707155f3f/2024_IESC_1_(O'Donnell%20C.J).pdf/pdf