§ 8.12 p.m.
§ Lord Sainsbury of Turville rose to move, That the draft regulations laid before the House on 24th February be approved [12th Report from the Joint Committee].544
§ The noble Lord said: My Lords, in speaking to this set of regulations I shall also speak to the Employment Rights Act 1996 (Application of Section 80B to Adoptions from Overseas) Regulations 2003. Towards the end of last year, the House debated regulations introducing a package of measures that give more support and choice for parents in the workplace. As part of that package the Government are introducing new leave and pay rights for employees adopting children in Great Britain. I am sure we can all agree that this is an excellent thing as it will mean that from 6th April 2003 adopting parents will have leave and pay entitlements comparable to the maternity provisions. For the first time, those parents, who perform such a valuable function in our society, will have a statutory right to time off work to establish a relationship with their new child.
The regulations we have before us today ensure that the right to adoption leave also applies to those who have adopted a child from overseas, a process sometimes known as inter-country adoption. We are not debating the pay aspects today as these are dealt with by separate regulations laid before Parliament by the negative resolution procedure. These regulations define an adoption from overseas 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".
The Government believe that it is only right that children who are adopted from overseas following the proper procedures and brought to live in this country permanently with their adoptive parents are given the same chance as any other child to develop a lasting and close relationship with their parents. In some cases these children will not be newly-born babies and one could argue that the period needed for them to integrate into their new home need not be as long. We should bear in mind the difficulties that these children will often have encountered in their lives and that, while the task for adoptive parents is different from that which birth parents face, it is in some ways harder, and easily requires as much time and patience. We therefore undertook to give the same rights to parents adopting from overseas as those adopting within Great Britain during the passage of the Employment Bill.
§ Those rights are 12 months' adoption leave for one adoptive parent, six months' leave paid at the standard rate of £100 per week followed by six months' unpaid leave. The other parent will be eligible for one or two weeks' paternity leave, again paid at the standard rate of £100 per week. So the entitlements are the same as those for domestic adoptions. The need for separate regulation for overseas adoptions arises because the processes involved in overseas adoptions differ markedly from those for domestic adoptions and are complex in themselves.
§ The main difference is that the key concepts of a child being "placed" with the adopter and of the adopter being "matched" with a child, which appear in the domestic regulations as elements of the conditions 545 of entitlement and as points at which the employee is required to give notice to the employer, do not occur in this country in the case of overseas adoptions.
§ Of course it is important that we get the notification mechanism right, so that employers have a fair idea of when their employee will take leave in order to plan for the future. Getting the notification requirements right has been a difficult matter as overseas adoption is usually a long-drawn out process, which is often subject to uncertainty. The Government realised that after they talked to interested parties—the Department of Health and the Inland Revenue —about the processes involved. However, it was clear that certain key points in the process could be used.
§ Adopters will receive an official notification, in most cases from the Secretary of State for Health, that they have been assessed as suitable to adopt. The regulations use that point 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.
§ 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 allow for the possibility that an employee may move jobs, perhaps in circumstances beyond his or her control. We do not think that it would be fair to exclude employees from the rights where that happens, and we do not think that it would be to the advantage of employers to do so. So employees wishing 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.
§ In all cases employees must have worked for their employer for 26 weeks to qualify for the rights, and must give their employer a minimum of 28 days' notice of when they intend that leave to start. The regulations will operate within the context of adoption law, which sets out the procedures for adoption from overseas. Under that legislation, adopters must follow clearly defined rules to be assessed and approved to adopt and to gain entry clearance for their new child.
§ I want to stress that most employers will not be affected by these measures. At present there are in the region of 300 adoptions of children from overseas a year. The numbers are not likely to increase and not everyone will take advantage of the new rights. Although these rights will affect only a small number of people and their employers, I believe they represent an important addition to the new rights for working parents as they make sure that people do not miss out on the opportunity to balance life and work just because they decided to adopt a child from overseas rather than in Great Britain. I therefore commend the draft regulations to the House. I beg to move.546
§ Moved, That the draft regulations laid before the House on 24th February be approved [12th Report from the Joint Committee].—(Lord Sainsbury of Turville.)
§ Baroness Wilcox
My Lords, I thank the Minister for his explanation of the two draft regulations. The 10th Standing Committee on Delegated Legislation in another place, spent time debating the regulations in detail. I do not think that it is right to take up your Lordships' time by repeating that discussion, especially as we on these Benches accept, with some reservations, the necessity for them. It does not make sense to have maternity, paternity and adoptive leave without covering the situation of adoption from overseas.
The Minister said that there are only about 300 overseas adoptions a year, and that it is by no means certain that all adoptive parents will want to take advantage of these provisions. While that is true, the fact is that whereas large companies can cope with the problems caused by the absence of an employee, for many small businesses, who work with an absolutely minimal work force, these regulations and indeed all the other rights to take leave can cause substantial difficulties.
Having read the draft regulations and the discussion in another place, I am uncertain about the timing of the operation of these regulations in the case of an overseas adoption, because sometimes such an adoption requires more than one visit to the country concerned—sometimes over an extended period. Will the Minister confirm when the clock starts to tick, and that the time needed to go overseas as a preliminary to the adoption process does not count—in other words, that preliminary process is in the employee's own holiday time.
My honourable friend the Member for North West Norfolk asked why the matter had not been dealt with when the package of proposals relating to maternity, paternity and adoption leave was debated, during the passage of the Employment Act 2002. The only answer given was that the Government made it clear that they:would take separate powers to deal with overseas adopters, because the law is very different and complex".—[Official Report, Commons 10th Standing Committee on Delegated Legislation, 13/3/03; col. 8.]With the greatest respect, however complex the law of adoption may be, there is no great difference as regards adoption leave, as is demonstrated by the comparative brevity and simplicity of these regulations.
This is simply another example of the Government having to cope with the consequences of rushing legislation on to the statute book without first working out all the ramifications, and without adequate time being given to the Committee in another place to debate Bills in fuller detail.
However, as I said, we support the regulations and their acceptance by this House.
§ Baroness Maddock
My Lords, I thank the Minister for his clear and detailed explanation of the 547 regulations. For me, it shows the importance of the rights of children that we are making their welfare a priority—something that we do not always do in this country in the way that many of our European Union colleagues do. Much of their legislation and day-to-day life places a high priority on the importance of children's welfare. On that basis, we especially welcome the regulations.
My noble friend Lady Barker would normally speak for the Liberal Democrats on the regulations; she has previously spoken for us on adoption matters. I know that if she were here, she would fully support the regulations. She told me, "The Government must have got it right, because all the agencies involved fully support what they are doing". So we are happy to support the regulations.
§ The Earl of Courtown
My Lords, I, too, thank the Minister for explaining the regulations. If I understand them correctly, official notification is required for adoption and paternity leave to be required. If there is no official notification, is the adoption still legal in this country?
§ Lord Sainsbury of Turville
My Lords, the first question raised concerned the impact on small businesses. When we introduced paternity and adoption pay, we considered its impact on small businesses. We believe that those basic employment rights should help all employers and employees. Parents who work in small firms are not excluded from benefiting from the new measures. We have used the Small Business Service as a channel to reach small businesses in extensive consultation on the rights, and have specifically considered those businesses in the regulatory impact assessment.
It was also asked why we need separate regulations for foreign adoptions. I hope that it was clear from my opening statement that different considerations on timing apply to such situations. It therefore seemed sensible to deal with the first category, where the position was much clearer, and then conduct special discussion and consideration on this matter. Nothing would have been gained from rushing the provision through.
On the question of whether an adopter will be able to take paid adoption leave to go overseas to arrange an adoption, the answer is no. Statutory adoption pay and leave will not start until the child has entered the country. It is not meant to be used by employees to travel overseas to arrange the adoption or visit the child. Adopters should talk to their employers about other types of leave that they might take to cover the period. Paid adoption leave is available to help adopters to take time off work when they return to the UK with a child to give them time to establish a relationship before returning to work. It is hoped that using the time in that way will reduce the number of disrupted placements.
Individuals bringing children into the country illegally will not be eligible for adoption leave. Adopters must comply with UK law and the laws of 548 the country in which the child lives. The law will allow only local councils and some voluntary adoption agencies to facilitate adoptions from overseas. That deals with the points raised. I commend the regulations to the House.
§ On Question, Motion agreed to.