Frank Fahey (Galway West, Fianna Fail)

I move: "That the Bill be now read a Second Time."

The Adoptive Leave Bill 2004 amends the Adoptive Leave Act 1995 to implement several recommendations of relevance to adoptive leave made by the working group on the review and improvement of the maternity protection legislation. The 1995 Adoptive Leave Act provides leave similar to maternity leave for an adopting mother after the placement of a child into her care. The purpose of the Act was to redress a perceived anomaly that women who adopted children were excluded from the maternity leave entitlements in place under the Maternity Protection Act 1994. The 1995 Act replicates all the relevant benefits of the maternity protection legislation for women whose motherhood arises from adoption and its provisions were modelled on existing arrangements for natural mothers. Provision is also made in the Act for similar leave for men in exceptional circumstances which arise where the employee is a sole male adopter or if the adopting mother dies either shortly before or shortly after placement of the child.

The maternity working group, some of whose recommendations form the basis of the Adoptive Leave Bill, was set up as a result of a commitment made in the Government's An Action Programme for the Millennium and under the Programme for Prosperity and Fairness. The working group was chaired by my Department and included representatives from all pillars of social partnership, relevant Departments, the Health Service Employers' Agency, the Health and Safety Authority and the Equality Authority. The group's recommendations were accepted in full by the Government. The Government also decided to amend the Adoptive Leave Act to incorporate, where appropriate, the improvements proposed to the Maternity Protection Act. The most important recommendation, which was to extend the duration of maternity and additional maternity leave by four weeks each, was immediately implemented by statutory instrument in March 2001, with identical increases applied simultaneously to adoptive leave and additional adoptive leave, again by statutory instrument. This brought the statutory adoptive leave entitlement, which attracts payment of salary or adoptive benefit, to 14 weeks and the additional unpaid adoptive leave entitlement to eight weeks. The remaining recommendations of the working group of relevance to adoptive leave require primary legislation to amend the Adoptive Leave Act and these will be implemented on the enactment of this Bill.

The Adoptive Leave Act 1995 was introduced to provide an entitlement to periods of leave from employment for an adopting mother after the placement of a child into her care on an equivalent basis to the entitlement to leave available in the maternity protection legislation to natural mothers. This equivalence was maintained in 2001 when matching increases in the periods of leave available to natural and adopting mothers were applied. In keeping with this policy, an amendment to the maternity leave provisions in the Maternity Protection (Amendment) Act 2004 will also be applied to adoptive leave. Section 3 of that Act provides for the reduction of the compulsory pre-confinement period of maternity leave from four weeks to two weeks, thereby increasing the period of such leave available after the birth of the child to 16 weeks. With a view to maintaining the parity of entitlement between adopting and natural mothers, the Government has agreed to increase the period of adoptive leave by two weeks to 16 weeks. This provision in section 3 of the Bill effectively means that both natural and adopting mothers will be entitled to avail of up to 16 weeks' leave from work with payment of Department of Social and Family Affairs benefit from the time a child is born or placed into their care.

The increase in leave to 16 weeks will be implemented by means of an order amending the Adoptive Leave Act 1995. As Deputies know, the draft order was considered earlier today by the Joint Committee on Justice, Equality, Defence and Women's Rights, and a resolution approving the order will be made shortly. The increase is being implemented in this manner so that adopting parents can avail of the increased leave provisions at an earlier date in advance of the enactment of the Adoptive Leave Bill 2004 to coincide roughly with the commencement of the Maternity Protection (Amendment) Act 2004.

The adoption of a child into a family requires considerable advance preparation and adjustment. The adoption process is a long and anxious journey for adopting parents but happily in the majority of cases it culminates in the fulfilment of their wishes to have a child. For good reason, the preparatory and assessment process is thorough and demands the full commitment of adopting parents. It is important to ensure that those wishing to adopt are given every support throughout this period and that support extends after placement to allow time for bonding and adjustment. The measures introduced in the Adoptive Leave Bill will enhance the existing legislative provisions which support employed adopting parents. The Bill achieves this by allowing more flexibility in managing work and family responsibilities during this period and by offering greater employment protection to employees who exercise their right to adoptive leave.

A good approximation of the number of employees availing of adoptive leave may be deduced from the number of recipients of adoptive benefit payments made by the Department of Social and Family Affairs. In 2003, there were 183 recipients of adoptive benefit while in 2002 there were 215 recipients. The numbers of children available for domestic adoption in recent years has declined and given rise to a marked growth in the number of foreign adoptions. According to the Adoption Board, unofficial figures for 2003 show that of the 621 adoptions authorised that year, 358 were foreign adoptions, 92 were Irish non-family adoptions and the remaining 171 were adoptions within families.

As a consequence of the growth in foreign adoptions, the Department of Health and Children introduced a structured approach in preparing and assessing prospective adopters for inter-country adoptions. As part of this structure, adopting parents are now required under the standardised framework for inter-country adoption to attend a series of preparatory group sessions organised by their local health board or adoption agency. Participation in the education and preparation stage of the standardised framework is compulsory for adopting parents. Participation in the standardised framework will be made a statutory requirement under legislation to be introduced by the Minister for Health and Children to ratify the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. This important stage of the process gives prospective adopters an opportunity to learn more about inter-country adoption so they can make an informed choice as to whether this is an appropriate step for them to take. It provides them with an opportunity to evaluate and improve their own knowledge about inter-country adoption and a place to meet other applicants at a similar stage in the process and where mutual support and learning can take place.

The education and preparation phase of the process takes the form of a course normally comprising six to eight three-hour sessions, giving 18 to 24 hours of preparation over a four-month period. Alternatively, some health boards run the course over three days. I understand the Department of Health and Children is encouraging health boards to explore the possibility of introducing more efficiencies in the education and preparation stage of the inter-country adoption process which may result in classes being held outside working hours and a reduction in the time between the completion of classes and the placement of a child.

To complete the assessment phase of the standardised framework, all prospective adopters, whether they are involved in domestic or inter-country adoptions, are required to attend an average of five to seven pre-adoption meetings, each of about 1.5 to two hours' duration, with social workers. These meetings generally take place during regular office hours at the health board or adoption agency offices. However, this part of the assessment process also includes at least one home visit by a social worker.

Many employers allow their employees paid time off from work to attend pre-adoption classes and meetings. However, there is no entitlement to time off, paid or otherwise, for this purpose. As a result, some employers only allow time off for this purpose at the employee's expense. To alleviate this, the Bill provides a new entitlement for adopting parents to time off from work, without loss of pay, for the purpose of the pre-adoption classes and meetings which they are obliged by the State to attend as part of the adoption process. This new provision parallels the provisions in the maternity protection legislation for paid time off work before the birth for pregnant women to attend ante-natal care appointments and classes. By providing an entitlement to both adopting parents, it also recognises that the adoption process differs from maternity in that it requires the full participation of each parent throughout the preparation and assessment process.

Section 2 makes technical amendments to the interpretation provisions of the 1995 Act. I have already referred to section 3 which provides for an increase in the adoptive leave entitlement for employed adopting mothers or sole male adopters by two weeks to 16 weeks. Section 5 applies the increased adoptive leave period referred to in section 3 to adoptive leave for fathers in certain circumstances following the death of the adopting mother. It also provides that the Minister may, by order made with the consent of the Minister for Social and Family Affairs and the Minister for Finance, extend the period of leave.

In sections 4 and 6, I avail of the opportunity presented by the Bill to incorporate directly into the principal Act the increased periods of adoptive leave and additional adoptive leave provided in SI 30 of 2001, the Adoptive Leave (Extension of Periods of Leave ) Order 2001. This will simplify the legislation.

I have already referred to the new entitlement provided in section 7 for employees to take time off from work, without loss of pay, to attend pre-adoption classes and meetings which they are obliged to attend as part of the adoption process. This new entitlement derives from an agreement negotiated with the social partners during the Sustaining Progress partnership talks in 2003. Subsection (4), which was inserted into the Bill following a Government amendment on Committee Stage in the Seanad, clarifies that the provisions of this section apply to pre-adoption classes and meetings held within the State. Provision has also been made for the exclusion of members of the Defence Forces and the Garda Síochána from the provisions of this section in specified circumstances. It is intended that regulations under this section will specify the conditions with regard to time off to attend these classes and meetings.

Section 8 is a new provision which allows an adopting employee and employer to agree to terminate additional adoptive leave which is unpaid leave in the event of the employee becoming ill. Once the leave is terminated, the employee's absence from work is treated in the same manner as any other absence from work due to sickness, with the employee benefiting from payment of sick pay or disability benefit depending on the sick leave arrangements available under the employment contract. This provision applies a recommendation of the maternity working group.

Sections 9 and 10 are new provisions which allow an adopting employee and the employer to agree to postpone adoptive leave or additional adoptive leave or both in the event of the hospitalisation of the adopted child. The postponed leave may be taken subsequently in one continuous period commencing not later than seven days after the child is discharged from hospital. These provisions also apply a recommendation of the maternity working group regarding adoptive leave and are closely modelled on section 7 of the Maternity Protection (Amendment) Act 2004.

Section 11 amends section 12 of the principal Act to incorporate an adopting parent's statutory entitlements in cases where placement is of less than 24 weeks' duration. Section 12 provides that an employee's absence from work on additional adoptive leave will count for any employment rights associated with the employment with the exception of remuneration and superannuation benefits. It also provides that while absent from work attending pre-adoption classes or meetings, employees will be treated as if they had not been absent. This provision applies a recommendation of the maternity working group for additional adoptive leave and means that time spent on such leave will be counted as service for the purposes of calculating increments, annual leave and seniority.

Employees who are absent from work on adoptive leave, additional adoptive leave, or to attend pre-adoption classes and meetings are afforded protection under sections 13 and 14 with respect to the termination or suspension of their employment during such absence.

Section 15 strengthens the current provisions covering the return to work of an employee who was on adoptive leave or additional adoptive leave to give effect to the 2002 gender equal treatment in employment directive, Directive 2002/73/EC. An employee returning to work from adoptive leave or additional adoptive leave will have a statutory entitlement to any improvement in the terms or conditions of the employment to which he or she would have been entitled if he or she had not been absent on such leave.

Section 16 also ensures compliance with the 2002 gender equal treatment in employment directive by providing that in the event of an employee returning to work on the expiration of adoptive leave or additional adoptive leave but resumption of the same work is not practicable and suitable alternative work is offered, the terms or conditions of such employment shall not be less favourable to the employee than those of the contract of employment immediately before the leave. It also provides that such terms or conditions shall incorporate any improvement to which the employee would have been entitled had he or she not been absent from work on such leave.

Section 17 is a technical amendment which amends the notification requirements for employees with regard to intent to return to work from leave to provide for notification of intent to return to work from postponed leave.

Sections 18 and 19 provide for necessary amendments to sections 2 and 6, respectively, of the Unfair Dismissals Act 1977 to take account of the new rights to time off to attend pre-adoption classes or meetings under the Bill.

Section 20 amends paragraph 5, Schedule 3 of the Redundancy Payments Act 1967, as amended by the Redundancy Payments Act 2003, which specifies periods that do not breach continuity of employment, to incorporate periods of absence from work to attend pre-adoption classes or meetings. Provision is also made for the amendment of Paragraph 8A, Schedule 3 of the Redundancy Payments Act 1967, as amended by the Redundancy Payments Act 2003, which specifies absences allowable as reckonable service, to incorporate periods of absence from work to attend pre-adoption classes or meetings.

Section 21 revokes the Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2001, S.I. No. 30 of 2001, as its provisions have been incorporated into this Bill.

I take this opportunity to refer briefly to other important developments taking place with regard to adoption. My colleague, Deputy Brian Lenihan, the Minister of State with responsibility for children, initiated a consultation process last year on adoption legislation. His intention is to undertake a complete review of adoption legislation in Ireland with the aim of making it more compatible with life in the 21st century by ensuring that it takes account of the huge changes in our society as well as changing trends and practices in adoption that have taken place since the 1952 Adoption Act. The consultation process was broad-ranging and examined a number of issues, including a draft Bill to provide for ratification of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption and to make changes to the role and structure of the Adoption Board. The Hague Convention on Intercountry Adoption provides safeguards for children involved in inter-country adoption by regulating the processes by which children are adopted.

The consultation process also examined the provision of a structured and regulated way of providing access to information and contact for those affected by adoption. It provided many valuable insights into these and other sensitive issues needing to be addressed, either on a legislative or an administrative basis. The views garnered through the process have been examined in the context of preparing proposals for changes to the adoption legislation. I understand that the Minister hopes to submit proposals to Government this autumn and I look forward with interest to developments in this regard.

The Adoptive Leave Bill before the House is part of a suite of statutory work-life balance measures to which the Department is committed under the Sustaining Progress partnership agreement. The Maternity Protection (Amendment) Act 2004 implements in full the recommendations of the working group on the review and improvement of maternity protection legislation. Its provisions strengthen and improve the employment rights of pregnant mothers, women who have recently given birth and those who wish to resume work while breastfeeding. Regulations under the Maternity Protection (Amendment) Act 2004 which have recently been finalised will provide for detailed arrangements on the new entitlements to time off from work, without loss of pay, for the purpose of attending ante-natal classes; breaks from work or a reduction of working hours, without loss of pay, for the purpose of breastfeeding; and to postpone the period of maternity leave in the event of hospitalisation of the child. The Maternity Protection (Amendment) Act 2004 will be commenced next Monday, 18 October.

The Parental Leave Act 1998 is also due for amendment in line with the agreed recommendations of a working group which reviewed that Act. On 8 September last the Government approved the general scheme of a Bill to amend the 1998 Act for priority drafting. I expect to publish the Bill later this year with a view to enactment at the earliest possible date.

I look forward to Deputies' contributions to the debate on the Adoptive Leave Bill. I believe the Bill represents a balanced and progressive response to the needs of employed adopting parents. It builds on progress already made on our employment equality legislation and marks another important step towards fulfilling the Government's commitments in Sustaining Progress. I commend the Bill to the House.

See this speech in context