Adoptive Leave Bill 2004 [Seanad]: Report Stage.

Amendments Nos. 1 to 4, inclusive, are out of order.

Amendments Nos. 1 to 4, inclusive, not moved.

Is it possible to have a copy of the amendments? I am standing in for Deputy Moynihan-Cronin who cannot be here today and I do not have the amendments.

Deputy English is obliging.

I thank the Deputy.

Amendment No. 5 arises from committee proceedings and amendment No. 6 is related so both amendments may be discussed together by agreement.

I move amendment No. 5:

In page 4, lines 27 and 28, to delete "employed adopting mother or sole male adopter" and substitute "one employed adopting parent".

I am grateful for the opportunity to make a few points on these amendments which arise from Committee Stage. I would like to seek clarification, as some stage, as to why amendment No. 1 was not taken since it is very similar to amendments Nos. 5 and 6.

My amendments are based on one point and are designed to establish a single change to the Bill to grant equal status to both adoptive parents as it applies to their rights with regard to adoptive leave. This is most obvious in amendment No. 9 but since that may not be taken either, I will concentrate on the two amendments before the House. Amendment No. 9 specifically enshrines this principle by adding it as a subsection to section 5.

Fine Gael is trying to remove a provision from the Bill that is entirely discriminatory against adoptive fathers. There appears to be no reason why adoptive leave should not be available as an option to both parents, rather than just to the mother. In the Minister's opinion it is more important for the mother to be with the child for the first 16 weeks. The Minister of State said that in his experience as Minister with responsibility for children it would not be in the best interest of the family for the father rather than the mother to get adoptive leave. While I do not believe this is acceptable, if the Minister of State can back this up I will accept it. I do not believe it has been proved. Most other countries I have researched give adoptive leave to either parent, including the UK, Canada, America and Australia. While I have not examined all countries, I will do so if necessary. Most of them give the choice to either parent. I do not know why we cannot do so and I feel it is unlawful not to give the option to both.

If a couple both of whom are working are to adopt a child, the Bill as it stands would effectively force the adopting mother to take adoptive leave since the option is not available to the adopting father unless she dies. It specifically prevents them from making a decision as to which of them stays at home with the adopted child. My amendment would allow them to decide that the adopting father rather than the adopting mother could take the leave and remain at home with the adopted child. The State should not dictate who should stay at home. Neither the Minister of State nor I know which parent would be better at staying at home with the adopted child.

Only one parent would be allowed to take the leave — either the adopting mother or the adopting father. I do not propose that both parents should be allowed take the full leave, which means my amendment has no financial implication. I want a choice for parents to decide what suits best for their family. At least in the case of non-adoptive parents there is a clear rationale for maternity leave as opposed to paternity leave, as the mother has undergone a very draining and physical event and needs time to recover. As this is not the case for adopting parents, the same discrimination should not apply to an adopting father.

In the Seanad debate, the Minister for Justice, Equality and Law Reform, Deputy McDowell, said the Bill would enhance existing legislation for employed parents and would offer them greater employment protection and more flexibility in managing their work and family affairs. He spoke about parents and did not differentiate between mothers and fathers. I do not know why the Bill does not reflect what the Minister said. I hope the Minister of State will accept my argument that parents should have a choice. It will not cost us money, nor is it the wrong thing to do. It merely follows what other countries do. In many cases it would be preferable for a father to take adoptive leave. For example, if the adopting mother were self-employed it may be impossible for her to take adoptive leave. However, her husband or partner could be in a position to do so.

As all the amendments are related, it will save time later if I complete making my case now. This provision indicates the lack of joined-up thinking that is the signature of the Government. On the one hand the Minister and his colleagues claim to be in favour of having cohesive families and supporting positive parenting. On the other the Government turns on parents and flies in the face of recommendations of bodies like the NESC and the OECD.

Essentially I welcome the Bill which is progressive and inclusive in many ways. I urge the House to consider these amendments which add to the progressiveness and inclusiveness of the Bill to the detriment of no one. So much is to be gained from accepting these amendments and so much would be lost by further enshrining in law effective discrimination against fathers in the home. This provision will be challenged under European law unless we change it now. It is not right to force the mother to take the leave. I cannot see any argument in favour of the provision.

Even the Minister for Justice, Equality and Law Reform would agree, as he spoke in the Seanad about enhancing parents' choices and making life better for them. I hope amendments Nos. 5 and 6 will be accepted along with the others. It will not cost money. It is simply about choice in a modern Ireland. None of us can decide whether the mother or father would be the better parent. It is quite common to have stay-at-home fathers. We have moved on considerably.

I cannot accept amendments Nos. 5 and 6, the effect of which would be to allow adopting parents the option of deciding which of them would avail of the additional unpaid adoptive leave. This would break the link between adoptive and maternity leave by opening the leave entitlement to adopting fathers, which would create an anomaly between the leave entitlements of adopting and natural fathers in that the latter have no such entitlement in maternity leave legislation. In addition I do not believe this amendment is needed, as on the enactment of the Parental Leave (Amendment) Bill, which will come into force in coming months, adopting fathers will be allowed to take parental leave at any time after the placement of an adopted child.

At present the entitlement to parental leave is only available from the time an adoption order is made whereas the Parental Leave (Amendment) Bill provides that the leave may be taken from the time of the placement. While I accept the thrust of the Deputy's argument, what he seeks will be adequately covered by the Parental Leave (Amendment) Bill. In addition we do not have paternity——

Will the Parental Leave (Amendment) Bill supersede this one?

The Parental Leave (Amendment) Bill will allow fathers to take parental leave after the child has been adopted. It is not possible to accede to the Deputy's request at this time, as we want to maintain the link, parity and equality between maternity and adoptive leave.

Unlike certain other countries, we do not have paternity leave here. This issue and a number of other amendments are the subject of agreement between the social partners. The social partnership negotiations will start soon and the question of changes may arise. However, these would need to be agreed in the first instance by the social partners. It would not be appropriate for me to make changes to legislation without those changes being the subject of agreement between the social partners.

The Minister of State is a legislator. The social partners do not make legislation. We are the legislators.

That is correct. The Deputy and I had this argument previously. I firmly believe in the social partnership model that has existed here for almost 20 years and has been the bedrock not only of industrial peace but also of very significant improvements in respect of family workplaces etc. As legislators it would be entirely inappropriate for us to make legislation without regard to the very central social partnership negotiations that have been fundamental to the economic success of the country. Therefore I would not be prepared to take unilateral action in the Dáil without regard to social partnership negotiations and without regard to ensuring legislation such as that governing maternity leave and adoptive leave contains these important links that are essential in the interests of parity and equality.

When we discussed this matter on Committee Stage last year, the Minister of State said he would not make changes then, as he wanted to discuss the matter with the review group. The Minister of State has had a year to discuss it. If amendments, which I believe are not being taken today, were accepted it would change the matter. The Minister of State is trying to defeat my argument by concentrating on amendments Nos. 5 and 6. However, I am trying to argue the general principle that the parents should decide. To dismiss the matter now would be wrong, as we might not get the chance to discuss it later.

The Minister for Justice, Equality and Law Reform, Deputy McDowell, made it very clear in the Seanad that the adoption process differs from maternity in that it requires the full participation of both parents. He clearly said they are different. I do not see why they need to be linked. Why is the Minister of State afraid to break the link between maternity and adoptive leave? There is nothing wrong in doing that. They are two different scenarios. Is the Minister of State saying this is wrong in every other country? Is little old Ireland behind the times? Do we not realise that fathers too can raise children? What is so wrong with this? The Minister of State has had a year in which to refer it to the review group, if that was necessary. I cannot accept that.

I remind the Deputy that the negotiations on social partnership begin next month. There have been no such negotiations since this Bill was introduced, so it was not possible to refer it back to the social partners.

It could have been referred to the review group.

It is fair to assume we will see changes coming about in the new partnership negotiations. Those changes can then be reflected in legislation along the lines the Deputy proposes if there is agreement between the social partners on the issue. I have not said there is anything wrong with what is being proposed but it is important that we retain the link which currently exists. If that link is to be changed, it should be changed with the agreement of the social partners.

Deputy English's reply is concluded. We are not on Committee Stage.

I understand the Minister of State's aspiration to ensure the links between maternity leave and adoptive leave are maintained on the basis that men are not allowed maternity leave. It would not be bad for men to have such leave, though not on the basis that they will eventually deliver children physically, which is clearly not going to happen. If paternity leave is going to be extended, as the Minister of State has indicated, there will be men who will take leave from employment in order to be at home at certain times after they have children of their own, rather than having adopted children. That would not be a bad thing, because after having children, women need support, in particular the support of their partners.

The paternity leave Bill has been kicked around for a long time, like an old football at training sessions. Is the Minister of State saying the Bill will be introduced in this or the next session? If not, and the deficiencies in the Bill before us are not rectified, will we be able to return to this Bill and alter it in a way which will allow men to take the sort of leave we are now extending to women? The Bill probably will be challenged if other legislation is introduced to allow men to stay at home with children if they choose.

I wish to clarify for Deputy English that we do not have paternity leave in this country but we have a paternal leave Bill which is being passed and the impact of which will be put into practice in the coming months. Adopting fathers will then be allowed to take paternal leave any time after the placement of the adoptedchild.

When? The "coming months" could mean any time.

We will get clarification for the Deputy regarding implementation, but this legislation covers the requirement being pointed out.

It does not.

In the event of a new agreement being reached between the social partners on any aspect of maternity leave or perhaps the introduction of paternity leave — if that were to be agreed — or parental leave, then existing legislation would have to be brought back before the House and the agreed changes would have to be reflected in the new legislation. That would if necessary also apply to this legislation.

The Minister of State is referring mainly to amendments Nos. 5 and 6. The future legislation he talks of will not give both adoptive parents equal rights in terms of adoptive leave. The adopting father will be able to take some unpaid leave. The other amendments are not being accepted, for whatever reasons. I do not accept that the Dáil cannot make a decision which every other country has already taken, because we want to discuss it by means of another process. No dramatic change is involved. It just makes common sense in a modern country. I am disappointed that we have not got the gumption to make a decision in this House. It shows how, in terms of politics, we cannot simply make the decision. The decision makes sense and is correct, yet we want to wait and return to the legislation after a year or two, after negotiations. God knows how long we will have to wait.

This Bill first came before us a year ago. How long will it take to make other little changes to it? It is disappointing and disheartening that we cannot make a decision though everyone agrees the matter speaks for itself. I must press the amendments because this is the only opportunity I will have.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 68; Níl, 45.

  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Callanan, Joe.
  • Carey, Pat.
  • Carty, John.
  • Cassidy, Donie.
  • Collins, Michael.
  • Costello, Joe.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Cregan, John.
  • Cullen, Martin.
  • Curran, John.
  • Davern, Noel.
  • de Valera, Síle.
  • Dempsey, Tony.
  • Dennehy, John.
  • Devins, Jimmy.
  • Ellis, John.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Fox, Mildred.
  • Gallagher, Pat The Cope.
  • Hanafin, Mary.
  • Harney, Mary.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McDowell, Michael.
  • McEllistrim, Thomas.
  • McGuinness, John.
  • Martin, Micheál.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Donnell, Liz.
  • O’Donoghue, John.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Sexton, Mae.
  • Smith, Brendan.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wilkinson, Ollie.
  • Woods, Michael.

Níl

  • Allen, Bernard.
  • Boyle, Dan.
  • Breen, James.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Connolly, Paudge.
  • Crawford, Seymour.
  • Cuffe, Ciarán.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Enright, Olwyn.
  • Gilmore, Eamon.
  • Gregory, Tony.
  • Hayes, Tom.
  • Higgins, Joe.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Lynch, Kathleen.
  • McCormack, Padraic.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McGrath, Finian.
  • McGrath, Paul.
  • McHugh, Paddy.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Morgan, Arthur.
  • Murphy, Catherine.
  • Neville, Dan.
  • Ó Caoláin, Caoimhghín.
  • O’Dowd, Fergus.
  • O’Keeffe, Jim.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Ring, Michael.
  • Sherlock, Joe.
  • Stagg, Emmet.
  • Timmins, Billy.
  • Twomey, Liam.
  • Upton, Mary.
  • Wall, Jack.
Tellers: Tá, Deputies Kitt and Curran; Níl, Deputies Neville and Stagg.
Question declared carried.
Amendment declared lost.
Debate adjourned.