Adoptive Leave Bill 2004 [Seanad] : Report Stage (Resumed) and Final Stage.

I move amendment No. 6:

In page 4, lines 33 and 34, to delete all words from and including "an" in line 33 down to and including "adopter)" in line 34 and substitute "one employed adopting parent".

Question, "That the words proposed to be deleted stand.", put and declared carried.
Amendment declared lost.

I move amendment No. 7:

In page 4, line 40, to delete "8" and substitute "26".

I am proposing that a parent, if he or she so chooses, should be allowed to spend the first year of a child's life with him or her. Expert opinion — like many Ministers — supports my view. This amendment is not some madness for the sake of having a run at a Minister or a Department in order to score political points; it is attempting to achieve an arrangement that is better for the child and, in turn, for society. This arrangement of 26 weeks is already in place in the North. I ask that the same principle be applied in the South. All Deputies are only too familiar with the child care crisis. This proposal would be one element in enhancing efforts to deal with that crisis, particularly if people were able to spend time with their children in the first year. I hope the Minister of State will accept the amendment.

I support the amendment. With maternity benefit, I know more mothers are giving false dates of delivery in order to have access to the entire period of maternity leave after the birth of a child, as opposed to being obliged to take two weeks of it before the child is born. This is a dangerous practice. Nevertheless, with the pressures of work, it happens regularly. This tells us that the amount of time available after the arrival of a child is not sufficient. Deputy Morgan's proposals are more realistic. The Minister of State stated that he is taking the maternity leave model but because of that legislation's attachment to the mother solely, it could be found unconstitutional at a later stage. We are tying ourselves into this model. I believed the adoptive and parental leave Bill was about bringing us into line with the Scandinavian model in how we treat parents and how they develop a relationship with infants.

It is a good idea to extend the period to 26 weeks. Like Deputy Morgan, I would prefer it to be extended to the first 12 months of a child's life. It is not only experts in the area of child rearing who recognise the benefits of a child being with either parent for the first year of his or her life. Parents themselves recognise it and want to be with their children but, because of the pressures of modern living and the cost of housing, they find it difficult to do so on a voluntary basis. I think the amendment is worthwhile and I support it.

I will not delay proceedings. We are singing from the same hymn sheet on this side of the House. There is no reason not to extend the period to 26 weeks.

I agree with the Deputies on the desirability of this move but a process is involved and there is an important link with maternity leave. The maternity working group considered the periods of maternity leave available and made recommendations to increase both maternity leave and additional maternity leave by four weeks each. These increases were immediately implemented in March 2001 and were simultaneously applied to adoptive leave and additional adoptive leave. If the Deputy's amendment was accepted, it would have the effect of breaking the link with the maternity leave provisions and the parity of entitlement between natural and adoptive parents. It would also breach the agreement reached by the social partners on adoptive leave. The review of statutory periods of leave such as adoptive, maternity and parental leave must follow consultation and negotiation involving the Government and the social partners through the partnership process. The views of employers and employees must be taken into consideration. It is not as simple as putting down an amendment or proposal and carrying it in a vacuum. The Government is working on a series of proposals that are the subject of further discussion in the context of social partnership and any budgetary matters will be a matter for the Minister for Finance.

I thank Deputies Lynch and English for their support for the amendment and for recognising its practicality and common sense. Partnership deals are done outside this House. To expect people in the House who had no direct input into those negotiations, or with the partnerships involved, to accept those deals transforms us from legislators to rubber stampers who do not have the right to amend or even tweak legislation. I do not accept that principle.

Is the Deputy for or against social partnership?

I am for people in this House having the right to amend legislation by moving reasonable amendments and for those amendments to be at least considered by the Government.

On partnership, ICTU agreed the adoptive leave measures. It did not, however, disagree with them being extended, as I am advocating here. I am not sure what IBEC's view is but I do not think ICTU would agree that the legislation should stop there and go no further. I certainly do not accept it.

This House and the relevant Minister should examine the merits of amendments and accept those that are constructive. I rest my case.

We have probably had this discussion three times on this legislation. I do not understand the Minister of State wedding himself to the maternity leave legislation. My understanding of that legislation is that it is single gender legislation. In an age when men, quite rightly, insist on having greater involvement with their children while they are young, I am surprised that the Minister of State refers to a restrictive item of legislation when dealing with a progressive measure such as parental leave or leave for people who are having a child by adoption. He should be proud to introduce such a measure but to do so on the basis of restrictive legislation that everybody knows will have to be revisited because of the equality demands placed on it is incomprehensible.

The number of politicians who are remembered for doing something in the common good can be counted on one hand and I do not understand why a Minister would not take the opportunity when it presents itself. I ask the Minister of State why he weds himself to legislation that he will be obliged to revisit?

I do so simply because the bedrock of economic success and industrial peace in this country has been partnership and that was achieved after exhaustive discussions and negotiations around maternity leave, parental leave and adoptive leave. For us to ignore what has happened and what is yet to happen——

I do not expect that.

We all sincerely hope that agreement is reached in the next partnership negotiations to improve the terms around parental leave and adoption and that the Government and Minister for Finance will be in a position to provide the extra resources for that. For us to take a decision without reference to all the other key people concerned would, aside from the fact that budgetary considerations are involved, be highly irresponsible.

I am surprised that two left-wing Deputies are pushing the idea that we ignore the social partnership process. The unions in this country, through their responsible leadership, have contributed more than anyone else to the success we enjoy today. The partnership negotiations that are about to start are critically important to that continuing. We will hopefully return on another day to approve a new agreement.

I did not want to become involved in a debate on partnership because I thought we would only deal with the amendment. However, now that the Minister of State has mentioned partnership, it is essential that I do so. I agree with his final comment that the unions and workers have given most in this partnership deal. Consider the Irish Ferries incident and the circumstances involving GAMA. Look beyond that to five Mayo residents in jail until recently over the Corrib gas line scandal. Is this what people signed up for when they subscribed to partnership, and could it be described as such? I am in favour of the concept of social partnership but I will not describe what is currently happening as partnership. There has been industrial peace on one side, as unions and workers have not entered into strike action and they comply with every piece of madness that comes along. On the other side of the coin one can look at the people who would be represented by IBEC, the Irish Ferry sort of company. What is happening there, where workers are to be dumped on their ear to be replaced by "yellow pack" workers? Where is the sanction to deal with that issue?

I am happy to debate social partnership at any stage with the Minister of State, but we should talk of realistic partnership and not the model that is currently there. I do not like the model that exists. Workers and unions have been stripped completely of all their powers to secure fair treatment for their workers. On the other hand, IBEC and employers tread over everybody. The words "stand idly by" come to mind with regard to the Government, as I can think of another context when those words were used. The Government managed to stand idly by on that occasion also, with much human, social and economic cost. I hope the Government does not stand idly by on this occasion also.

With regard to the amendment itself, Ireland compares badly with other EU states on the issue of length of leave and statutory maternity benefit. This amendment would go some way to bringing the country on the radar. I hope the Minister of State will reconsider, although I do not expect he will given his comments so far.

The Minister of State does not reply at this point.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 65; Níl, 50.

  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Browne, John.
  • Callanan, Joe.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Collins, Michael.
  • 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.
  • Fox, Mildred.
  • Gallagher, Pat The Cope.
  • Glennon, Jim.
  • Grealish, Noel.
  • Hanafin, Mary.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Keaveney, Cecilia.
  • Kelly, Peter.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • McEllistrim, Thomas.
  • McGuinness, John.
  • Moloney, John.
  • Moynihan, Donal.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Donnell, Liz.
  • O’Donoghue, John.
  • O’Donovan, Denis.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Malley, Fiona.
  • Power, Peter.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilkinson, Ollie.
  • Woods, Michael.
  • Wright, G. V.

Níl

  • Allen, Bernard.
  • Boyle, Dan.
  • Breen, James.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burton, Joan.
  • Connaughton, Paul.
  • Connolly, Paudge.
  • Costello, Joe.
  • Cowley, Jerry.
  • Crawford, Seymour.
  • Cuffe, Ciarán.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • English, Damien.
  • Ferris, Martin.
  • Gilmore, Eamon.
  • Gregory, Tony.
  • Healy, Seamus.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McManus, Liz.
  • Morgan, Arthur.
  • Murphy, Catherine.
  • Naughten, Denis.
  • Neville, Dan.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Penrose, Willie.
  • Perry, John.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, Eamon.
  • Ryan, Seán.
  • Sargent, Trevor.
  • Sherlock, Joe.
  • Shortall, Róisín.
  • Stagg, Emmet.
  • Stanton, David.
  • Twomey, Liam.
  • Upton, Mary.
Tellers: Tá, Deputies Kitt and Curran; Níl, Deputies Ó Snodaigh and Stagg.
Question declared carried.
Amendment declared lost.
Amendments Nos. 8 to 12, inclusive, not moved.

Amendment Nos. 13 to 20, inclusive, are related and may be discussed together.

I move amendment No. 13:

In page 5, line 13, to delete "father" and substitute "parent".

I do not wish to go back over the whole debate again. All my amendments have had one agenda, which is to grant equal status to both adoptive parents when applying for the right to adoptive leave. I still do not accept the Minister's argument that either parent cannot avail of adoptive leave. I was willing to wait until the Parental Leave (Amendment) Bill 2004 was published, but it was not in that. I will not go over the whole issue again and I will not seek a vote, although I would love to do so all night. I feel it is discriminatory that both parents cannot avail of adoptive leave and cannot choose between either parent. We are not the experts on this, nor is the Minister. The experts are the parents, who should decide which parent avails of adoptive leave. It is a shame that in this day and age, we are not prepared to go that far. The Parental Leave (Amendment) Bill 2004 does not deal with it, but gives leave for different reasons to all parents for their children up to the age of eight years. Adoptive leave should be additional to parental leave, and it is a pity the Minister of State cannot go some of the way towards addressing this.

I cannot accept theses amendments, which rely for validity on earlier amendments that were ruled out of order. Deputy English's amendments are consequent on amendment No. 1, which has been ruled out of order. Section 6 of the Bill amends section 10 of the Adoptive Leave Act 1995, which makes provision for additional unpaid adoptive leave for bereaved fathers in certain circumstances following the death of the adoptive mother. In the event that both the mother and father were entitled to leave in their own right — which they are not — then Deputy English's amendments would have merit. However, the principal Act and this Bill confine adoptive leave to adopting mothers and in this scenario, when the mother dies, the leave can only be available to the surviving parent, namely, the father.

There is no point in repeating the argument. It is disappointing that this cannot be changed. The Minister of State is correct that all the amendments are linked.

Amendment, by leave, withdrawn.
Amendments Nos. 14 and 15 not moved.

I move amendment No. 16:

In page 5, lines 23 to 28, to delete all words from and including "of---" in line 23 down to and including "weeks" in line 28 and substitute "of 8 weeks".

This amendment tidies matters up and makes much the same point as that made by Deputy English. The Act recognises that there is a possibility, albeit an unfortunate one——

We cannot enter into a debate on this amendment.

I understand. However, there is recognition within the Act that it is possible that the adopting mother could die and there is no way of extending the adoptive leave to the father.

Question, "That the words and figures proposed to be deleted stand.", put and declared carried.
Amendment declared lost.
Amendments Nos. 17 to 19, inclusive, not moved.

I move amendment No. 20:

In page 5, line 28, to delete "8" and substitute "26".

Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 21 not moved.

I move amendment No. 22:

In page 7, to delete lines 49 and 50.

This amendment relates to an adoptive parent who becomes ill while on leave. On return, such parents are no longer entitled to take the remainder of the adoptive leave due to them. This arises as a result of a lack of understanding, albeit not on the Minister of State's part, and I am surprised to find it in the Bill.

If a mother becomes sufficiently ill to require hospitalisation or so that she simply cannot take care of her child, she should not be deprived of what she would expect to receive. Under the proposed legislation, it appears that as such a mother came off the disability benefit to which she would be entitled when sick, she could not take the remainder of her adoptive leave. This seems incredible as she would lose out on bonding time with her child. In the first instance, an adoptive mother does not have the same bond with her child as would a natural mother and it must be built on. While this can also happen with women who give birth naturally, clearly there is more bonding to be done when a child is adopted. Under the proposed legislation, however, if, for example, the mother becomes ill for three weeks of the 16 weeks, when she comes off disability benefit, she is unable to take the remainder of the adoptive leave. It is possible that a mother could become ill 13 weeks into the adoptive leave period and it would then not be available to her at the end of her illness. However, it should be. If there is a period of time in which a mother cannot nurture her child because of illness, then she should be able to take the remainder of her adoptive leave as an automatic right when the period in which she is sick ends.

The Minister of State is probably afraid that people will move from adoptive leave to disability benefit and back again in order to extend their period away from work. That fear would have been allayed had the amendment proposing a 26-week leave period been accepted. However, I do not believe that people would act like that. I do not know many women who would do so. Women are put to the pin of their collars in order to return to work, sort out babysitters and all the rest, so as to pay massively inflated mortgages. I ask the Minister of State to accept this amendment because it makes sense. Increasingly, I have noticed a trend in legislation which assumes that people will do the wrong thing.

The purpose of the Bill is to apply the appropriate recommendations of the maternity working group to adoptive leave. I am sorry that I am obliged to repeat that.

So am I.

All Members are.

The agreement unequivocally states that the Adoptive Leave Bill would provide for the termination of additional adoptive leave in the event of illness, subject to the agreement of the employer. As I have stated, the purpose of section 8 is to provide for termination of additional adoptive leave, if the employee chooses and the employer agrees. On its own, the deletion of the proposed new section 11B(4)(b) of the principal Act would not change this but would merely risk introducing a small element of uncertainty. The proposed new section is clearly titled “Termination of additional adoptive leave on sickness of adopting parent” and the word “terminate” is used throughout the section. If the Deputy proposes that the balance of leave should be postponed or suspended, then an amendment to this effect would be required. The deletion of the proposed new section 11B(4)(b) would not have the effect of making available the balance of untaken leave to be taken at a later time.

I have studied the debate on the Bill and a continuous trend runs through it at all times. The fact that a recommendation was made by the group which advised the Minister of State on the Bill does not necessarily make it right. No one is infallible. We are not the holders of all knowledge, which is what debating is all about. It is surely people's experience when they debate a matter. One cannot continually say that a group did not recommend it.

This amendment does not do what the Deputy wants.

It would go some way towards doing it. The Bill states "The employee shall cease to be entitled to any leave not by then taken." I want this deleted and the amendment would go some way towards doing so. The provision in the Bill is almost a virtual punishment. Some women who adopt children will become ill and will not take what they naturally would, such as disability benefit, in between the periods as they know they will be short-changed at the end of the process.

It really is the choice of the individuals. If they want to terminate their adoptive unpaid leave to go on paid sickness benefit, it is a matter for them and there is no problem. This amendment is not necessary in that regard and the deletion of subsection (4)(b) would not have the effect of leaving the balance of untaken leave available at a later time.

They will take it. They will switch over to sick leave to get the money.

The Minister of State is correct in that the amendment would not have that effect but if the subsection were deleted, it would clearly be optional then.

On the buy-out.

Yes. As matters stand, and we have had this argument before, what is in the Bill will be applied and rightly so. This is what legislation is about. the new subsection (4) states:

(a) The absence from work of the employee owing to sickness after the termination shall be treated in the same way as any other absence from work of the employee owing to sickness, and

(b) the employee shall cease to be entitled to any leave not by then taken.

I have no argument with the Deputy but if she is proposing that the balance of leave should be postponed or suspended, she must table an amendment to that effect because amendment No. 22 does not deal with that matter.

Any amendment at this stage would be irrelevant.

I clearly did not initiate this Bill. If the Minister of State agrees with what I am saying, he should amend it to ensure that what I am asking for happens.

Is there a mechanism?

We are not proposing that it would be suspended or postponed but that it would be terminated.

If a person wants to terminate the unpaid adoptive leave, that person is entitled to sick benefit.

The person might not have that choice.

I accept that achieving what the Deputy wants in full cannot be done by deleting this subsection unless the Minister of State is prepared to table an amendment but removing it will go half way.

Yes. It is compulsory.

It will not be written in stone that the leave be terminated in order for it to be open to employers and employees to resolve the issue. Removing this subsection would do no harm. My understanding is that the Bill was intended to bring matters in line with the provisions relating to maternity leave. If one is sick, maternity leave comes into effect after one returns to full health.

It is still available.

The Chair has been lenient, as Deputy English was not entitled to speak.

I accept that but I was seeking information.

What the Deputy is suggesting would mean that this would be an unclear law, which would not be in anyone's interests.

We have many such laws.

We have a very clear law but it is unjust, which is not what the Minister of State wanted.

It is not unjust.

It is unjust. To deprive someone of what they expected to have at the onset of a particular situation due to events they did not foresee and could not possibly control is unjust. A clear law is one matter but an unjust law is another matter entirely.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move:

That, in accordance with Standing Order 128(1), the Adoptive Leave Bill 2004 be recommitted in respect of amendment No. 23.

Question put and declared lost.
Amendment No. 23 not moved.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

I thank Members for their contributions to the debate on the Bill. It is important legislation that will enhance the lives of adoptive parents. I appreciate the strong views expressed by Members concerning aspects of the Bill but, in light of the circumstances I have outlined, it is not possible to accept them at this stage. With the evolving policy changes in terms of family life balance, I am sure we will see changes and improvements in the not too distant future. I thank everyone, including my officials, for the passage of this Bill, which has taken more time than I would have thought.

The Bill is important and has taken much time. I welcome its passage and accept the Minister of State's comments that there may be changes in future. I ask that, at any of the future negotiations, it will be made clear how we felt on some of the issues.

I thank the Minister of State and his officials. The drafting of legislation is never easy and formulating answers to our opposition to most new legislation is equally difficult. One must be on top form and on one's toes. As the Minister of State said, this legislation is long overdue and will make life for people who form families by adopting children much easier. I wish each and every one of them the best of luck and hope they will avail to the full of what is in this legislation. Let us hope it is enacted very quickly because there are people out there waiting for it.

I welcome the passage, unfortunately with many imperfections, of the Bill. Nevertheless, it is a step in the right direction and will do until after the next election when we will have an opportunity to bring forward the improvements necessary to make really good legislation.

We have a small number of seconds before we move on to Private Members' time.

Deputy Ring would like to make a speech.

I am sure he would but we will not call him now, as the time has arrived.

I will make a speech.

Question put and agreed to.

As the Bill is considered by virtue of Article 20.2.2° of the Constitution to be a Bill initiated in the Dáil, it will be sent to the Seanad.