Tenth Standing Committee on Delegated Legislation
Thursday 13 March 2003
[Mrs. Marion Roe in the Chair]
Draft Employment Rights Act 1996 (Application of Section 80B to Adoptions from Overseas) Regulations 2003
The Minister for Employment Relations, Industry and the Regions (Alan Johnson): I beg to move,
That the Committee has considered the draft Employment Rights Act 1996 (Application of Section 80B to Adoptions from Overseas) Regulations 2003.
The Chairman: With this it will be convenient to consider the draft Paternity and Adoption Leave (Adoption from Overseas) Regulations 2003.
Alan Johnson: It is a pleasure, as always, Mrs. Roe, to serve under your chairmanship.
From April 2003, the Government are introducing a package of measures that give more support and choice for parents in the workplace, including improved maternity rights, paid leave for working fathers and the right to request flexible working hours. The package also includes new leave and pay rights for employees adopting children in Great Britain, which are comparable to the maternity and paternity provisions. Those rights recognise the valuable contribution that adoptive parents make to society and, for the first time, allow them to take time off work to establish a relationship with their new child. The regulations were approved by Parliament in November 2002, and will come into force on 6 April 2003.
The regulations now before us are intended to widen the scope of the adoption leave rights to include employees who work in the United Kingdom but who have adopted a child from overseas. The adoption and paternity pay provisions for overseas adopters have been set out separately in negative resolution regulations.
An adoption from overseas—known as an inter-country adoption—is defined in the regulations as
''the adoption of a child who enters Great Britain from outside the United Kingdom in connection with or for the purposes of adoption which does not involve the placement of the child for adoption under the law of any part of the United Kingdom.''
In bringing these statutory instruments before the Committee, we are honouring a commitment made during the passage of the Employment Act 2002. It is right that the many children in Great Britain who need a home should be given the chance of a permanent family, which is why we support the people who are giving them that chance. We also believe that it is right to support those who offer the same chance to children from overseas. Once they have completed the adoption, such parents deserve the same opportunity to spend time with their children as parents who adopt in the UK.
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It may be helpful to the Committee if I recap on the provisions for those adopting in the UK. One adoptive parent will be entitled to the full adoption leave of 12 months: six months leave paid at the standard rate of £100 per week followed by six months unpaid leave. The other will be eligible for one or two weeks paternity leave, again paid at the standard rate of £100 per week. It is those rights that we intend to give to eligible employees who are adopting from overseas, subject to the Committee's approval of the regulations today.
The Government consulted extensively on the adoption pay and leave proposals. Officials have since worked closely with interested parties, and with colleagues in the Department of Health and the Inland Revenue, on finding a suitable way of applying the legislation to the small group of overseas adopters. From early on in the consultation process, it was clear that it would not be possible to create one-size-fits-all regulations for employees adopting in the UK and those adopting from overseas.
We therefore need specific and separate regulations to cover overseas adoptions, because the process and law governing them is complex in itself and very different from that which governs domestic adoptions.
The main difference is that the key concepts of a child being placed with an adopter and of the adopter being matched with a child, which appear in the domestic regulations as elements of the conditions of entitlement and the stages at which the employee is required to give notice to the employer, do not occur in the case of overseas adoptions. Instead, we have used the point at which an adopter receives official notification that they have been assessed as suitable for adoption and the date on which the child enters Great Britain, as elements in the conditions of entitlement and as points at which employees must notify their employer of their intention to take leave if they have sufficient length of service.
In most cases, the official notification will come from the Secretary of State for Health following consideration of a potential adopter's suitability to adopt, and it will provide evidence that an employee is planning to adopt from overseas.
Unfortunately, overseas adoptions are subject to more uncertainty and delays than domestic adoptions, in which a child may be placed for adoption quite soon after matching. It can often take more than a year for a child to enter the country following a favourable assessment of the potential adopters. For that reason, we are allowing for the possibility that an employee may move jobs, perhaps in circumstances beyond their control. We do not believe that it would be fair to exclude employees from entitlement to these rights where that happens. Therefore, employees who want to take adoption or paternity leave also have the option of notifying their employer of their intention to take leave once they have the necessary 26 weeks qualifying service with their new employer, even if they received the certificate of notification some time before.
The bottom line is that in all cases employees must have worked for their employer for 26 weeks to qualify
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for the rights, and they must give their employer a minimum of 28 days notice of when they intend their leave to start. We believe that this strikes the right balance between the needs of the employee and the employer.
The regulations will operate within the context of adoption law, which sets out the procedures for adoption from overseas. Under that legislation, adopters have to follow clearly defined rules to be assessed and approved to adopt, and to gain entry clearance for their new child.
Mr. Peter Kilfoyle (Liverpool, Walton): If someone has qualified for the rights while working for a company that is then taken over, are their rights protected by the transfer of undertakings regulations?
Alan Johnson: Yes, they will be, just as normal adoption and domestic adoption would be protected in that way.
Brian Cotter (Weston-super-Mare): I may not understand the full implications, but as overseas adoption takes much longer, it seems right that someone who moves to a new job should not be at a disadvantage. Should they tell the new employer that they are in the process of adopting when they move to a new job? Is that a relevant point?
Alan Johnson: It is a relevant point. The employee should let their new employer know as soon as possible that they are in the process of adopting and have the notification, which is usually signed by the Secretary of State for Health, but that they are waiting for the child to be adopted to gain entry into Great Britain. Two things are important: first, they must have worked for the new employer for 26 weeks before the leave can kick in; and secondly, they must give the new employer 28 days notice. It is exactly the same for parents adopting in the United Kingdom.
Finally, I hope that it is clear that there should be little concern about the effect of the measures on large or small employers. Currently, some 300 people a year adopt a child overseas, and the numbers are unlikely to increase. Furthermore, we suspect that by no means all of them will take advantage of the new rights. The regulations are a small but crucial addition to the new rights for working parents, which will better enable employers to retain valued members of their work force. I therefore commend the regulations to the Committee.
Mr. Henry Bellingham (North-West Norfolk): I am glad that the Minister emphasised the need to ensure that firms can retain some of their best employees. Obviously, we are talking not about a large number of people but about several people who may well be doing important work in particular firms. I declare an interest, as I am the father of an adopted child, as is the hon. Member for Sheffield, Heeley (Ms Munn). We both sat on the Committee that considered the Adoption and Children Bill.
With the reservations that I will express in a moment, the Opposition welcome what the Minister has said.
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Last year, a package of proposals relating to maternity and paternity adoption leave rights under the Employment Act 2002 was debated in Committee, and I am not clear why it did not include overseas adoptions. The Minister said that separate regulations were required, but did not explain why. It should have been possible to simplify the original package of rights and consider the proposals at the same time.
Will the mothers of adopted children be covered by the earlier regulations or by this proposal, which does not mention mothers but refers to paternity and adoption rights?
In respect of overseas adoptions, the Minister said that children who were adopted from overseas were not placed for adoption as such. He mentioned en passant that in England and Wales—in Scotland, too—they are treated as privately fostered under section 66 of the Children Act 1989, but I am not sure that that is the case. My understanding of the Adoption and Children Act 2002—the hon. Member for Sheffield, Heeley may wish to comment on it if she catches your eye, Mrs. Roe—is that children who are adopted from overseas are in exactly the same position in law as those who are adopted under UK adoption procedures, more so since the 2002 Act, which makes further stipulations about the need for a proper home study by an adoption agency. In the past, some home studies were done by private agencies or individuals, which led to problems. The measure rightly tightens that up. However, I would like the Minister to clarify the matter and perhaps he will write to the Committee about it if he cannot reply now.
The explanatory memorandum states:
''Children who are adopted from overseas are not placed for adoption.''
That needs to be looked at again, as I believe that that is not the case. It might have obviated the need for separate regulations if that had been considered earlier.
The Minister said that there would be a 26-week qualifying period and a minimum of 28 days notice. However, the position in respect of overseas adoptions is not as straightforward as the Minister seems to think. Often, the adopting parents will go to a foreign country beforehand to meet the agency, to be matched with a child and then to collect that child. Under the law in some countries, the procedure does not end there; one or other of the parents, and sometimes the child, too, will have to return to the country to finalise the matter before the courts after three or six months or even a year. The parents in question will have to make several journeys; once notice has been given, presumably the adoption leave in the regulations will start from the moment that the child arrives with the parents, but that is not clear from what the Minister said.
What about possible leave to go out to the country to meet the adoption agency and, perhaps, the natural parents? In some states of America, the agency insists that in open adoptions the adopting parents meet the natural parents before the adoption—often before the child is born—and then go out again some months later. What is the situation if the employee wants
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leave, perhaps paid, to make such a foreign visit? After the period of adoption leave expires, the parents may still have to return to the country. Is there any provision for such leave?
The Opposition support the regulations and the entitlement, because we feel that it does not make any sense to have maternity, paternity and adoption leave without including overseas adoption, although only a few cases are involved. There may be fewer examples still. If the Adoption and Children Act 2002, which the Government introduced with strong Opposition support, leads to a significant increase in the number of UK adoptions, there may be less demand for overseas adoptions. The small figure mentioned by the Minister may fall further.
Has any regulatory impact assessment been made of the changes? We are supportive of the employees of larger firms enjoying the rights, and companies such as ICI or GlaxoSmithKline that have a substantial human resources department will be able to handle such regulations easily. I am more concerned about the small firms, and I was speaking to people from a firm in my constituency only recently about that point. It is a small food manufacturer with about 12 people on its production line at any one time. It finds it difficult to operate with fewer than 12 people, and if a significant number of those people claimed the rights that we are discussing, that would put the company in difficulty. I am thinking more of maternity or paternity leave, but the regulations are still relevant, as someone adopting from overseas may work in such a small company.
The message that I am receiving from businesses is that they support many of the regulations in principle, but they are concerned that smaller firms will find it increasingly difficult to cope with the pressures that they create. The Minister spoke about trying to improve relations between employers and employees to ensure that firms were able to retain the best employees. For that to happen, employees need to be properly looked after, but will he comment on the problems faced by small firms? Did the regulatory impact assessment specifically cover small firms?
Is there any possibility of the Government introducing a de minimis principle if it is shown beyond peradventure that small firms suffer disproportionately? Although we support the principle of the rights, we are concerned about small businesses and wealth creation in the small firm sector. We hope that the Government will keep the regulations under careful review and then come back if they feel that there is a need for some special measures to help smaller firms. I hope that the Minister will answer those specific points.