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Baroness Morris of Bolton: My Lords, I thank the Minister. As he can see, I have a smile on my face. I thank all noble Lords for their support. It is a matter which I and all noble Lords feel strongly about. It is true that it is early days for concurrency, which is well established and successful in America. It will reap tremendous rewards in this country. I thank the Minister for agreeing in principle. I have never pretended to be the best parliamentary draftsman. I fully accept that it is not necessary to amend primary legislation. Will regulations then come before the House? Will we have another chance? How will this happen? Can the noble Lord comment on that?
Lord McKenzie of Luton: My Lords, I believe that if the conclusion is that the regulations as currently drafted cover the position, nothing specific will be put forward, although the guidance notes will need to be amended to reflect the conclusion. I will write to the noble Baroness and all noble Lords who have spoken today in order to update them on how we take this matter forward. It is important that noble Lords are fully satisfied that what they wish to achieve is encompassed in what the Government propose putting into effect.
"(1A) For the purposes of subsection (1)(b) and (c), the relationship with the child is that the employee has parental responsibility for the child or has made in some other form to be set out in regulations under this section a commitment to care for and support the child on a continuing and long-term basis."
The noble Lord said: My Lords, Amendment No. 2 concerns the definition of the person who is to be considered as a father for paternity leave. It is a probing amendment and I should like to thank the noble Lord for his letter on the subject, which has enabled me to table this amendment. In a nutshell, the Government's argument for the definition proposed in the Bill is that the present definition for ordinary paternity leave is working well, so why change it? It may be worth considering whether this is a valid reason for assuming that there should be no change and for assuming that the same formulation will work equally well for this six-month period of paid additional paternity leave. Obviously, for the latter, the stakes are much higher. We are talking about a big amountperhaps 10 times as much money. Therefore, there may be the greater temptation to dishonesty.
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However, this is not the argument that I want to advance this afternoon for my amendment. I want to raise what I believe to be a more important issue. We are all agreedand the Government agreethat our concern in this Bill must be to enhance the well-being of the nation's children. As your Lordships all know, there is today ample good research showing that the presence of a committed father or a father figure in the life of a child is likely to increase the child's well-being and his chances of success in education and in later life. So should we be taking every opportunity to increase the probability that fathers will make a commitment to their child?
It is not clear what the existing proposed tests as printed in the Bill mean. It says that the person in question must be responsible for the upbringing of the child. What do those words mean? Do they mean that he may or will for the period of six months help to look after the child, as a kind of childminder, or does it mean a long-term commitment by that man to that child?
In order to find out and perhaps to propose a solution to that point, I have inserted the words "parental responsibility". Parental responsibility implies a long-term commitment to the child. It may not be perfect; it may not always work, as in a marriage, but at least there is a commitment at the beginning. To have paternal responsibility in law, a father must either be married to the mother or have signed the birth register of the child or obtained paternal responsibility by application to the courts. Each of those is a positive act of showing commitment. Obviously marrying the mother or signing the birth register implies such a long-term commitment, but there may be reasons why a man does not want to marry. However, signing the birth register is something that any reasonably committed father should want to do for his child.
Conversely, any father who cannot be bothered to turn up and sign the birth register might be considered an unsuitable person to look after the child on his own for six months. A person who is not married and has not signed the birth register has to appeal to the courts to obtain paternal responsibility, but there is no such condition for a person who signs the birth registerhe is free to walk in and do so. It is an option open to every father.
My contention is that if parental responsibility were part of the definition to qualify for paternity, that would be a powerful incentive to encourage any father who had the slightest intention of being a good father to sign the birth register. Fathers who do not bother to do so are scarcely likely to be suitable. I have inserted a second part to my amendment, which is a kind of failsafe. It may be that as time goes by there will be other ways in which fathers can signify their commitment to their child. For example, a draft Bill was introduced in another place by Frank Field for naming ceremonies for a child in which a formal commitment to the child would have been given had the Bill proceeded.
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My argument is that the amendment should lead to more unmarried fathers taking seriously their duties to their child and to the greatly increased well-being of some of the nation's children as a result. The Government should have a record of all those who have parental responsibility, so it does not seem that any great administrative problems will be involved. I beg to move.
Baroness Miller of Hendon: My Lords, it is impossible for me to add to what the noble Lord, Lord Northbourne, said. He said it so well that no one could argue with the benefit that would arise when the man takes responsibility, and when the child knows that the man willingly takes responsibility as a father during his growing years. We support the amendment.
Baroness Walmsley: My Lords, I too support the amendment. The purpose of the noble Lord, Lord Northbourne, in trying to clarify the relationship about which we are talking between the man and the child is commendable. Of course, none of us can ensure that, by a piece of legislation, what a man says or does when the child is born or is young is something that he will follow through with for the rest of the child's life. However, the more that we can do to have him make that commitment the better, and the more likely he is to follow through. Children need fathers and as much contact with the father as possible.
There may be a very good reason why the man is not able to marry the mother of the childhe may be married to somebody elsebut that does not disqualify him from taking a real interest in the child and the child having the right to know who the father is and to make a relationship with him. I certainly welcome this attempt to clarify what the relationship should be. Whether it is accurate in terms of parliamentary draftsmanship I do not know, but I certainly support its purpose.
Baroness Howe of Idlicote: My Lords, I, too, support what is clearly behind this amendmentit will be behind quite a number of the amendmentsto encourage the father's parental role in supporting the child right through life. I am also a little worried about whether it is drafted in the right way and whether it is actually necessary, but this debate will no doubt help to clarify that point for us.
Lord McKenzie of Luton: My Lords, I thank the noble Lord, Lord Northbourne, for bringing this issue back before us. I hope that the correspondence that ensued between Grand Committee and today was helpful to him. I also thank other noble Lords who have spoken.
As I outlined during Grand Committee and Second Reading, existing paternity provisions require that, for a father to qualify for paternity leave, which will now be known as ordinary paternity leave, he mustin the case of the birth of a child, rather than an adoptionbe the father of the child, or be married to or be the partner including civil partner of the child's mother, and be responsible for the upbringing of the child.
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That definition was consulted on prior to the introduction of paternity leave in 2003, and was accepted as a reasonable definition that encompassed a wide range of fathers who would be supporting the mother or caring for the child after the birth of the child. The definition clearly outlines who could be eligible and has been accepted as a reasonable and widely understood relationship criterion.
When claiming statutory paternity pay, a father must complete a signed declaration that he is taking time off work to care for the child and support the mother or both, that he has or expects to have responsibility for the upbringing of the child, and that he is the father of the child and/or the husband or partner of the mother. It has been, and still is, our intention to adopt the same relationship criteria for fathers to be able to take additional paternity leavesubject to other qualification criteriaas we believe that these are the right criteria and we have no evidence to prove otherwise. We do not want to upset the proverbial apple cart by adopting different criteria from those applied to existing paternity leave, and we do not believe that changing existing paternity leave criteria would be the best approach to keeping things straightforward for employers as well as employees.
We have no evidence that the existing criteria cause significant problems. We want to help both employees and their employers to understand who is eligible and keep the scheme as straightforward as possible. Having the same definition for the additional paternity leave scheme would achieve this.
We set out our intention to adopt the same relationship criteria in our consultation published on 8 March. We will analyse the responses fully and see if there is any valid objection to us adopting this criteria. The consultation closes on 31 May, so we have a little way to go. The amendment would require a father to have acquired parental responsibility or to have made some other form of commitment to care for and support the child on a continuing and long-term basis in order to be eligible to take additional paternity leave and pay. If the father has his name on the birth certificate, he automatically gets parental responsibility. If not, he can reregister the birth as long as he is the natural father. Other ways to obtain parental responsibility are to marry the mother of the child, obtain a parental responsibility order from the court, or register with the court for parental responsibility. Parental responsibility could be time-consuming to obtain, especially if the person is not the biological father.
For civil partners and step-parents, the procedure would involve either agreement between the step-parent and the child's parents or court proceedings to obtain parental responsibility. Court proceedings could take additional time and may not be completed before the point at which the parent would like to start his additional paternity leave, which may be as early as 20 weeks after the birth of the child.
The amendment suggests a second way in which a father could qualifyif he makes a commitment to care for and support the child on a continuing and
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long-term basis. How this commitment would be made is unclear from the amendment and it is difficult to see how it could be any firmer than the implied commitment under the existing definition that I outlined earlier. To require a person to go through this process of obtaining parental responsibility or in some other way confirming a commitment before being able to take paternity leave and pay would, I suggest, be onerous and would impact on the number of people eligible to take this leave and pay, and could reduce the number of people taking up this provision.
While we agree that it is important for a child to have continuous care beyond the first year of its life where possible, we also have to be realistic about the changes that can occur over timethe break-up of relationships, or change of partner, to name but a couple of circumstances. Additional paternity leave and pay is intended to allow fathers an opportunity to care for a child where they are responsible for that child's upbringing, so it should be available to the most appropriate person. I envisage that in the majority of circumstances the person claiming ordinary paternity leave would be committed to long-term responsibilities, as was thought at the time of its introduction in 2003. Therefore, if the same definition is adopted, we consider that the person claiming additional paternity leave and pay would, in the majority of cases, also intend to care for and support the child on a long-term basis. We would clearly want to see and support that.
The existing definition of a father is included in regulations rather than in primary legislation for ordinary paternity leave, and we intend to follow this approach for the eligibility criteria for additional paternity leave. We will develop secondary legislation once the detail of the policy is finalised, following further consultation and consideration. These regulations will be the subject of consultation and will be made by the affirmative procedure. We therefore have the time to ensure that this issue is discussed fully as the policy develops and is reviewed. We want to make sure that we get this scheme right and I can assure noble Lords that this issue will be considered fully.
In conclusion, we understand the thrust of the point made by the noble Lord. However, we hope that he will take the point that parental responsibility issues are not necessarily straightforward and can in certain circumstances be time-consuming. If that were the key criteria, that could preclude, within the timeframes necessary for these provisions, certain fathers having the opportunity of participating in these arrangements. It is certainly important that we align the definition so that ordinary paternity leave and pay are matched with the additional paternity leave, otherwise it will be a minefield. I am sure that all noble Lords would accept that. The consultation has not yet finished so we will have to await its final outcome, but we think that to proceed, as the noble Lord suggests,
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in terms of enshrining this in primary legislation is not the right way forward, for the reasons that I have outlined.
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