Mr. Christopher Bowes:

It is clear that this refers to both individuals, as parents of the dependent child, in order to avail of the two years. It is another area where it might be worth talking to organisations like Treoir which have the experience of looking at how this operates in the family law context. That is one of the benefits to the approach here, given this definition is used for those sorts of family law applications under the 2010 Act. It might be worth getting their take, based on their experience of those sorts of situations where there may be children involved but where they are not the children of both parents within that cohabiting relationship.

I would make one point. The fact that it is centred around children of both parties to the existing cohabiting relationship might be based on the fact that this scheme is designed to basically fill the gap where one of those parents is not able to provide for the children, in this case in the event of their death. Given the fact it relates directly to the parents of the children, it might be linked to their role as providers of financial support to those children, whereas other children might have other parents who provide the same sort of support.

I will move on to the question of the implications of the judgment beyond the schemes that are covered in the general scheme. There are a number of payments, including the non-contributory version of the survivor's pension, death benefit under the occupational injuries scheme and what will now be called the bereaved parent’s grant, which is covered. All of those schemes, prior to the enactment of this proposed amending legislation, were an exception to the general rule in the social welfare legislation which recognises cohabiting relationships. For most people in receipt of the standard weekly social welfare payment, the increase in respect of a qualified adult would cover a cohabitant in addition to a spouse or civil partner, so it would actually bring it in line with the rest of the social welfare code in terms of recognising cohabitation.

In terms of recognising the children, which was the specific point raised by the Chair, in his judgment, the Chief Justice looked at previous decisions which had upheld social welfare schemes that deprived certain children or families of access to payments. One that he looked at in particular was the Michael decision, which looked at the entitlement of families in direct provision to child benefit. The Supreme Court upheld that those families could not access the payment on the basis that there was basically an objective justification for it, which in that case was the State's right to impose a habitual residence condition.

The status of the parents was an objective policy criterion for determining access to social welfare payments. It was very clearly established in this case that some level of objective rationale was needed if certain families were to be deprived of a payment. The Chief Justice said that, in this instance, no objective rationale could be identified for depriving the children of cohabitants of access to the payment. That principle certainly will apply as we go forward. As has been noted, there was a real emphasis placed on the status of the children and the rights of children and families in the reasoning of the Chief Justice in his decision.