Children and Families Bill

Memorandum submitted by Fatherhood Institute (CF 09)

Briefing relating to Parenting leave proposals with special reference to fathers in the Children and Families Bill

A. BACKGROUND

Why parenting leave design matters

Paternity and parental leave are central to involved fatherhood and involved fatherhood is central to gender equity and family stability. Without fathers’ full participation as caring parents, women will remain financially and socially disadvantaged. Parenting leave design signals our expectations about ‘who does what’ at home and at work. Researchers in Sweden have shown that for every additional month of leave taken by a father, his partner’s annual income increases by 7%.

The first 2-3 months of fatherhood can affect the way that a father relates to his child for the rest of their lives and the taking of parenting leave by fathers is good for the whole family. UK fathers who take paternity leave are 25% more likely to change nappies and 19% more likely to get up to babies at night than those who do not; and an EHRC survey in 2009 found that 69% of fathers who took paternity leave said it improved the quality of family life. Among cohabiting couples with newborns, both parents’ beliefs that father-involvement is important plus fathers’ actual involvement predict relationship stability. Conversely, low father involvement is associated with high levels of w omen’s anger at their partners and low satisfaction among fathers . All of this, as well as low father-involvement, is damaging to children.

The UK’s leave arrangements (52 weeks maternity leave reserved for mothers, 2 weeks paternity leave reserved for fathers) are among the most unequal in the world. A recent review of leave in 33 countries found the average length of post-natal maternity leave to be between 3 and 4 months; only four countries (including Ireland and the UK) have maternity leave of 6 months or more. Progressive countries, as in Scandinavia, tend to have very short maternity and paternity leave (two weeks in Iceland and Sweden) and long parental leave (divided into quotas for dads, mums and ‘shared’). The UK’s leave is unusually poorly paid, well below the national minimum wage at a ‘flat’ rate’ (currently £135.45 per week), except for the first six weeks of maternity leave which are paid at 90% of earnings. The UK spends far less on parenting leave than comparable countries: (UK: 0.15% of GDP; Germany: 0.32%; Norway: 0.47%; Sweden: 0.67%).

Even the ability of parents to share leave is severely constrained in the UK: currently, a mother who had decided not to use all her maternity leave may transfer a maximum of 26 weeks (13 paid at the low rate, 13 unpaid) to her partner from the 20th week after the birth, provided she has begun work. This leave is known as Additional Paternity Leave (although, in fact, it is a form of transferable maternity leave). This system was instituted almost two years ago. Likely take-up was originally estimated by the government at 10,000-20,000 fathers per year (around 2%). Exact figures are not known but are likely to be much lower than even this low estimate, due partly to current financial pressures on families, partly to widespread ignorance about the scheme (it was never widely publicised) and partly to the fact that eligibility for this leave relies on both parents having particular work records [1] . This rules out more than 50% of new-parent-couples.

Parental leave in Modern Workplaces

Almost two years ago (16 May 2011) the Government published a radical document – the Modern Workplaces consultation https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31549/11-699-consultation-modern-workplaces.pdf This proposed that from the 18th week after the birth maternity leave was to become flexible parental leave. Central to the European definition of flexible parental leave is that it is an ‘individual’ right: that is, a parent’s eligibility to take it depends only on their own work record and not, as in Additional Paternity Leave (described above), on their joint work records

As with flexible parental leave, both paternity leave and maternity leave are ‘individual’ rights: a father or mother is eligible for that leave, whatever their partner’s work status. This means that most working mothers and fathers are eligible. This would also be the case with flexible parental leave: as an ’individual right’ it would be available to the great majority of new mothers and fathers

One of the key elements of flexible parental leave as set out in Modern Workplaces was that it was to truly flexible: the leave was to be able to be taken part time, offering mothers the possibility of a phased return to work and couples the possibility of a father and mother each caring for their baby part-time in a week and working at normal salary the rest of the week. This could give employers the flexible workforce they need and families the employment flexibility they need. It could also have reduced the time that mothers were fully absent from the workplace (which has such a devastating impact on their later earning power) and encouraged fathers to take ‘sole charge’ of their infants (the best way of developing self-confidence and skills). Furthermore, because the ‘working’ part of any week would be paid at normal wage level, it is likely that more fathers would feel able to afford to take leave – and therefore would take it. This would have ushered in the longed-for cultural change of re-defining early parenting as a joint, rather than a maternal, responsibility.

To further encourage take-up by fathers, Modern Workplaces proposed an additional paid month’s leave within flexible parental leave which was to be reserved for father’s own use: if the father didn’t use this reserved ‘daddy-quota’ the family would lose it. In other countries a ‘daddy-quota’ has been found to be an important element in encouraging dads to take leave. So that mothers would not lose any of their entitlement, Modern Workplaces proposed the addition of this paid quota to the existing 41 weeks of paid leave in the first year, giving families an entitlement of 45 paid weeks over that period: 20 (maternity leave) reserved for mothers alone and 6 (paternity leave plus the parental leave ‘daddy quota’) for fathers alone. The remainder was to be available to either parent to take alone, or to divide between them.

As the consultation continued . . .

All this was not to be. As the consultation continued, there was strong opposition to the Government’s proposals from employers, trades unions and, bizarrely, from some ‘women’s’ organisations. These last, funded by trades unions and employers, mounted a campaign to keep all the leave as maternity leave. Sharing (i.e. transferring maternity leave) was to remain in the mother’s gift, although she, too, would not have a free hand: she would be forbidden from transferring the first six months of her leave. In essence, what these organisations argued for was to keep the existing Additional Paternity Leave system. Other than their two weeks paternity leave, there was to be no individual entitlement to parenting leave for fathers, whose eligibility to take such leave would continue to depend on both their own and their partner’s work records. The Fatherhood Institute, together with academics and other concerned individuals, including some active feminists, argued against this, saying that mothers had nothing to fear and everything to gain from the Modern Workplaces proposals: under these, mothers would retain the right to take the full 52 weeks’ leave if they so wished, while benefiting from the ability to share with their partner and the flexibility that flexible parental leave would offer. However, this perspective was overwhelmed by the well-funded campaign against the changes – and the Government capitulated.

B. THE REVISED PROPOSALS

The Government’s compromise proposals have now been published as part of the Children and Families Bill, currently receiving its second reading in the Commons, due next in the Lords and expected to be law by the New Year with introduction of most of the legislative changes from 2015. The proposals relating to fathers are:

Shared Parental Leave: Clauses 87 & 89 of the Bill introduce what is to be known as Shared Parental Leave and Pay. This is not the same as flexible parental leave [2] because fathers and mothers will not have an individual entitlement to it based purely on their own work record. The parents eligible to take Shared Parental Leave and Pay will be couples where both partners are economically active, meet an earnings requirement and are employees with 26 week’s service prior to childbirth. At a stroke, this rules out more than half of new parents [3] , with fathers even more excluded than mothers since self-employed/casually employed dads are to be left out and the leave is not a ‘Day One’ right for them as it is for mothers. The proposed new scheme remains essentially the same as the existing Additional Paternity Leave system, with a few positive ‘tweaks’:

· The ‘transfer’ of leave from mother to father can happen from 2 weeks after the birth instead of 20 weeks

· Mother and father can take the leave at the same time

· There is a tiny bit of flexibility: unlike Maternity Leave, which has to be taken in one continuous ‘block’, Shared Parental Leave can be taken in blocks of one week (so a parent could be off on parental leave one week, work the next, then take another week on parental leave, and so on. Even this bizarre working pattern (which has been described as ‘disruptive’ rather than ‘flexible’ working!) would not be a ‘right’: it can only happen if the employer agrees.

Furthermore, the revised scheme does not allow for parents to take their leave part-time. This rules out the possibility of a phased return to work for mothers. It also stops eligible fathers and mothers using parental leave to ‘box and cox’ work/childcare over a working week, while receiving parental leave and pay on their ‘at home’ days. [4] The inability of the new proposed system to deliver a parenting leave that can be taken part-time by either or both parents is puzzling. This would not be opposed by any of the stakeholders. Allegedly, it is HMRC that is making this impossible, with their system of ‘statutory benefits’ only able to be taken by the week, not by the day. If this is the case, it is extraordinary that Modern Workplaces made so much of the possibility of parents’ sharing leave by the day rather than the week. That document would surely have been checked by HMRC before publication.

We want the bulk of leave in the first year to be able to be taken by either parent, irrespective of their partner’s employment record. Eligibility should rest on each parent’s work record alone and HMRC should be challenged to find a way of making possible part-time working plus part-time use of parental leave. [5]

Independent rights for fathers

Under the new proposals, there is to be no additional ‘daddy quota’ leave. Fathers’ only reserved ‘daddy quota’ remains their existing two weeks paternity leave. This leaves the UK in the position it was in before Modern Workplaces was mooted, with one of the most unequal leave entitlements in a modern jurisdiction: 52 weeks for mothers, 2 weeks for fathers.

The government has indicated that it will seek to bring in a period of reserved paid leave for fathers when the economy has ‘properly recovered’. They plan to do this by extending paternity leave (i.e. leave taken near the birth, generally while the mother is still at home) rather than by reserving for fathers any element in paid parental leave (which could be taken later in the year when the mother is far more likely to have returned to work). Because paternity leave is a father’s individual right (and is not dependent on the mother’s work record), far more fathers would quality if an additional ‘daddy quota’ were part of paternity leave rather than of shared parental leave, in which – as already pointed out - fewer than 50% of fathers will be entitled to participate. However, if the ‘daddy quota’ can only be taken within the first twelve weeks (which will be the case if paternity leave is extended), most mothers will still be at home and it will not make financial sense for most fathers to take it. This means uptake will be minimal and cultural change slow. Within a system of flexible parental leave in the first year, with each parent’s eligibility based solely on their own work record, we want – once the economy has ‘properly recovered’ - four weeks’ paid parental leave to be reserved for fathers as a ‘daddy quota’.

A ‘Day One’ right: To access paternity leave, a father must be employed for 26 weeks by the end of the 15th week before the baby is due (and earn above a lower earnings limit) and must give notice of his intention to take paternity leave 15 weeks before the baby is due. Many do not realise this, so fail to access their entitlement. This does not change under the new scheme. However, within this, a ‘primary’ adopter will have a new entitlement to access adoption leave as a ‘day one’ right (see below), while fathers in all families will still have to ‘earn the right’ to take leave. At the moment fathers do not actually even have the right to attend their child’s birth and have to rely on taking unpaid emergency family leave. Paternity leave should be a Day One right for fathers as for mothers.

Ante-natal appointments: Clause 97 introduces a right for fathers and partners (including some intended parents in surrogacy situations) to take two unpaid half days of leave to attend antenatal appointments with their pregnant partner, with the ability to complain to an employment tribunal if leave is refused. This small step is welcome. However, for this leave to be paid would be preferred (the ‘burden’ on employers would be miniscule) while the proposed time frame (6-and-a half-hours per appointment) seems unduly restrictive and will require primary legislation to amend. In some circumstances it would be unreasonable to take six and a half hours for a local appointment; in others where, for instance additional scans or specialist appointments far from home are required, the six and a half hours may be insufficient. We would prefer to see this leave paid, and fathers given access to "reasonable" time off (which Regulations could describe in more detail) with the restriction on the amount of time per appointment removed.

Modern Workplaces states thatthe NHS encourages mothers to invite their partner to attend appointments if they would like support.’ We are not aware of any guidance to that effect and are all too well aware of variability in practice, including active exclusion of fathers in some settings for no good reason. GPs should be required to include the father’s name on the referral form, where this is safe; and maternity services required to invite fathers to at least one antenatal appointment, provided the mother wishes this. Maternity services should also be required to record the father’s name and contact details, where these are known, on the mother’s care plan and look at offering appointments at times when employed fathers and mothers will find it easier to attend.

Time off for adoption appointments: Clause 98 introduces this to enable adopters to meet with the child before placement. But this system, too, his highly gendered, with no justification: neither parent is giving birth. The legislation allows for the ‘primary’ adopter to take paid time off for up to five adoption appointments. The ‘joint’ (i.e. secondary) adopter will only be able to unpaid take time off to attend two appointments. Weirdly, in surrogacy, the primary/joint status of the parents disappears: both women and men using a surrogate will only be entitled to unpaid time off to attend two antenatal appointments with the mother who is carrying their child. The same time-restrictions for the ‘secondary’ adopter’s attendance apply and may be particularly problematic: six and a half hours may not be enough to travel across the country to meet and bond with a child or to visit a surrogate mother, and these issues would be better set out in regulations than on the face of the Bill, so that they can be amended as needs are identified and as employment practices change. Adoption and surrogacy require particularly high levels of parent-cooperation and it is ludicrous to treat one adopter as primary and the other as secondary when neither is giving birth. We would like to see adopters able to share all leave and to have equal entitlements to substantial, paid pre-birth connections with the child they are adopting or with the pregnant surrogate

Remuneration: The current flat rate of pay for parenting leave in the UK (well below the National Minimum Wage, as already pointed out) will only be up-rated in line with other benefits by 1 per cent until 2016, meaning a fall in value in real terms. Demos has found that half of the 27% of eligible fathers who do not take paternity leave let it slide because they cannot afford to take it; many more will feel unable to take longer leave (whether as Shared Parental Leave or extended paternity leave) if this continues to be paid at such a low rate. It is in fact scandalous that only the first six weeks of maternity leave are paid at above this rate, undoubtedly forcing some mothers to return to work before they are even physically ready. High take up of parenting leave by fathers will only happen if remuneration makes this viable. Fathers who take leave should be paid at 90% of wages for the first six weeks and statutory pay levels for maternity, paternity and parental leave should be at least the National Minimum Wage.

C. THE FUTURE

It is difficult to know how to proceed. The minor changes which are proposed in the legislation under review move more or less in a positive direction; and substantive modifications to this legislation are unlikely to be made during its progress through parliament. It is in fact possible that, in continuing with 52 weeks’ maternity leave and 2 weeks’ paternity leave, the UK is in breach of equalities legislation in Europe. It may well be that a Judicial Review should be sought.

March 2013


[1] B oth parents must have worked for 26 weeks in the 66 weeks prior to childbirth, earned a certain amount in 13 of those weeks and have be en an employee with 26 week’s service with the same employer prior to childbirth.

[2] The Government wanted to call the new system ‘flexible parental leave’ and indeed their press announcements used the term. They were later prevented from doing so, because their lawyers poi n ted out that the new scheme was not flexible parental leave at all, in any known definition of the term

[3] Including s ingle mothers , who will not be able to take their leave flexibly, but will continue to have a continuous block of maternity leave; self employed fathers , who will not be able to access any rights to leave or pay (although their employed partner may opt into the system if he qualifies); mothers on maternity allowance who will only be able to take their leave and pay in a single block (although they will be able to transfer a notional 52 weeks of leave and any remaining pay to a qualifying employed partner); and couples where only one parent is or has been economically active.

[3]

[4] Acutely aware of this limitation, the Government is struggling to allow some kind of flexibility through providing KIT (‘Keeping in Touch’) days which would enable parents, if their employer agreed, to work part time for a short period while still receiving their parental leave payment. However, that payment could not be taken part-time and the burden on both employers and parents of trying to understand the system let alone administer it would be enormous.

[5] Where there is a will, there is a way: one of the arguments against restricting child benefit to less-well-off couples was that HMRC would find it difficult to administer . They have managed.

Prepared 8th March 2013