I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials. Our purpose is to consider the Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2004 which was laid before the Dáil and Seanad on 9 September 2004 and referred to the Joint Committee on Justice, Equality, Defence and Women's Rights on 5 and 6 October, respectively, with a view to its reporting back to both Houses by not later than 19 October. Copies of the draft order, together with a briefing note, have been circulated to members who have already received copies of the Minister's speech. I look forward to an effective and rewarding session.
Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2004: Motion.
I am empowered, under sections 6 and 9 of the Adoptive Leave Act 1995, to vary, by order, the periods of adoptive leave with the consent of the Minister for Finance and the Minister for Social and Family Affairs. Section 3(3) of the Act requires a resolution to be passed by both Houses of the Oireachtas before I can sign such an order into law.
In common with maternity leave, there are three types of leave available in the case of adopting employees: first, 14 weeks' adoptive leave which attract payment of adoptive benefit from the Department of Social and Family Affairs and in some cases payment of wages by the employer; second, eight weeks' additional adoptive leave which are unpaid; and third, up to 22 weeks' leave for fathers in the event of the death of the mother within a certain period of the placement of the adopted child. The first and third types are the subject of the order.
The order provides for an increase of two weeks in adoptive leave, from 14 to 16 weeks. The proposed increase is linked to the reduction in the compulsory period of pre-confinement maternity leave from four to two weeks provided for in section 3 of the Maternity Protection (Amendment) Act 2004. The reduction in the compulsory period of pre-confinement maternity leave means that pregnant women are compelled to take only two weeks of the 18 week maternity leave period before the birth of the child, leaving 16 weeks' to be taken after the birth. The Maternity Protection (Amendment) Act 2004 will be commenced on 18 October.
The Adoptive Leave Act 1995 was introduced to provide for 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 leave entitlement available in 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, recent changes to maternity leave will also be applied to adoptive leave. In the interests of maintaining parity of entitlement between adopting and natural mothers, the Government agreed to increase the period of adoptive leave by two weeks to 16 weeks. This effectively means that both natural and adopting mothers will be able to avail of up to 16 weeks' leave from work with payment of a Department of Social and Family Affairs benefit from the time a child is born or placed into their care. In accordance with section 3(4) of the Act, both IBEC, representing employers, and ICTU, representing employees, were consulted.
The order to increase adoptive leave is part of a package of improvements to the adoptive leave legislation. The Adoptive Leave Bill 2004 which will commence Second Stage in the Dáil later today amends the Adoptive Leave Act 1995 to apply several recommendations of relevance to adoptive leave made by the working group on the review and improvement of maternity protection legislation. The most significant recommendation, to extend the duration of maternity and additional maternity leave by four weeks each, was implemented immediately in March 2001, with identical increases applied simultaneously to adoptive and additional adoptive leave. This brought the statutory adoptive leave entitlement which attracts payment of salary or adoptive benefit, to 14 weeks and additional unpaid adoptive leave to eight weeks.
Sections 3 and 5 of the Adoptive Leave Bill 2004 provide for the increase in adoptive leave being made in the draft order. However, rather than await enactment and commencement of the Bill, I decided to bring the increase into effect sooner by means of an order under the 1995 Act. As I said, the changes in the maternity leave provisions will come into effect next week, on 18 October, and, in the event that the draft order is approved by both Houses, I anticipate that it will also be made next week, at which point advertisements will be placed in the newspapers setting out the details of the increased entitlement.
The Department of Justice, Equality and Law Reform examined the possibility of applying the adoptive leave increase not only to women who commence adoptive leave on the date that the order is signed but also to women who commenced leave prior to that date. This issue was examined previously in the context of applying the leave increases in 2001, but the legal advice was and still is that it is not possible. The advice is that it is essential that the order comply with the parent Act. Under the Adoptive Leave Act 1995, a person taking adoptive leave must give four weeks' notice to his or her employer. In view of the notice requirements under the 1995 Act, it would not be possible to have the order extend the period of adoptive leave to those persons who could not comply with the notice requirements of the parent Act. Any attempt to make the order retrospective could be deemed to affect the rights of employers adversely and would be open to legal challenge. The order will impact on employers in several ways, for example, the need to replace employees for a longer period than expected and, in some cases, contractual obligations in respect of the payment of wages. It is, therefore, necessary for me to provide that the order take effect four weeks after it is signed into law to comply with the four week notice requirements under the Adoptive Leave Act 1995.
Article 1 of the order is a standard technical provision. It clarifies that the order and the one made in 2001 which increased adoptive and additional adoptive leave by four weeks each may be cited together. Article 2 revokes Articles 4, 6 and 8 of the 2001 order which are re-enacted in amended form by this instrument. The remaining provisions of the 2001 order which relate mainly to additional adoptive leave will still apply and are not affected by this order.
Article 3(1) relates to the commencement date which I expect to be next week. Article 3(2)(a) provides that the increased entitlement to adoptive leave will apply to women or sole male adopters who commence adoptive leave four weeks after the signing of the order into law. Article 3(2)(b) provides for a commencement date which complies with the notice requirements of the parent Act regarding fathers who take leave in the event of the death of the mother within a certain period of the adoption placement. Article 3(2)(c) provides that the provisions of Article 6 which I will outline shortly will apply from the date the order is commenced.
Article 4 extends the period of adoptive leave under section 6 of the parent Act from 14 to 16 weeks, the period of adoptive leave which attracts a payment from the Department of Social and Family Affairs. Article 5 extends to a maximum of 16 weeks the period of adoptive leave which, again, attracts adoptive benefit payment to which a father would be entitled in the event of the death of the adopting mother.
Article 6 amends section 12(1) of the Adoptive Leave Act 1995 which provides for the termination of adoptive leave and/or additional adoptive leave in the event of the termination of an adoption placement before the end of the period of leave to which the employee is entitled under the Act. It sets out the new entitlements in this situation and makes transitional provisions for employees who may be on adoptive and additional adoptive leave at the time the order is commenced, that is, 14 weeks adoptive leave or 14 weeks adoptive leave plus eight weeks unpaid adoptive leave, and are not entitled to the increased adoptive leave entitlement.
That is the substance of the order which I commend to the committee. It is part of the social partnership process. While I could have awaited the enactment of the forthcoming legislation, it was thought fairer to give this advantage to adopters in the process in advance of the legislative process changing the parent Act.
While I know the Minister is a great advocate of plain English, a few convoluted sentences remain.
They may be hard to follow; they are worse to read out.
On the basis that the order will go through today and be passed by the Dáil, from what date will people be entitled to the benefits outlined?
It will be four weeks from the date of commencement, which will be four weeks from a date in the next few days. The reason for this is that a person is required to give notice to claim the benefit. It will be a date in November depending on when I have the leave of the Houses to sign the order.
On the basis that——
This will happen on the assumption that the committee recommends acceptance.
Does the Minister expect it to be passed by the Houses this week?
That is a matter for the Whips. I imagine it will be passed without debate in both Houses. I will sign it as soon as I have been informed it has passed through both Houses.
While this may be a matter for the Minister for Social and Family Affairs, does the Minister know how much the beneficiaries will receive?
I can describe it as an extra two weeks' adoptive payment. If the Chairman is asking for the level of payment, I have not brought that information with me.
Effectively, it will be another two weeks payment.
Yes.
I welcome the Minister. I presume we can have no objection to an extension of adoptive leave by two weeks to 16 weeks. It is very welcome. It is nice to see the Minister coming bearing gifts.
The Deputy should not talk to me about extensions today.
We were wondering whether we could raise that issue.
We thought the Minister might be too sensitive about it.
The extension applies both to natural and adopting mothers. The change is from four weeks pre-confinement to two with 16 weeks leave afterwards for natural and adoptive mothers. What about the other side of the coin — fathers? They are not treated in the same fashion. If the adopting mother dies in the period, a concession is made to the adopting father in terms of benefit. However, no equal paternity-maternity or father-mother adoptive treatment applies in this matter. For the natural mother obviously a pre- and post-confinement period applies. However, adopting parents are not natural parents. In those circumstances, equality of benefit should accrue to both parents. Why did the Minister not consider applying this?
For some time I have been bothered by a certain matter which the Minister may be able to address. A person only becomes an adopting parent after a child has been formally taken into the care of the health board. These days many parents die due to drugs misuse or in accidents and the extended family immediately takes in the child. In addition, we now have many more one-parent families which do not allow the stigma, if I may use that word, of the child being taken into care. Therefore, they cannot avail of the remunerative benefit that accrues to the adopting parents of a child who has been through the bureaucratic process of being taken into care. There is a substantial difference between what the immediate family receives compared with the family that formally adopts the child, even though the effect and responsibilities are the same. If anything, the family that has immediately taken in the child has been very generous and acted immediately to ensure the child has a good home.
Based on the response to a parliamentary question tabled to the Minister for Social and Family Affairs, I understand there are approximately 1,500 children who are affected by this anomaly. This change will allow an adopting mother to avail of the extra two weeks' payment from the Department of Social and Family Affairs once the child has been placed in care and adopted. However, nothing will be granted to those who immediately take in a child who becomes an orphan and is effectively adopted but has not been taken into care. I want to flag this anomaly and while the Minister may not be able to answer now, perhaps he could come back to me when he can.
I ask the Minister to bank these questions.
I welcome the Minister. The amendments before us today are most welcome. The Minister stated: "The reduction in the compulsory period of pre-confinement maternity leave means that pregnant women are compelled to take only two weeks of the 18 week maternity leave period before the birth of the child." While I do not wish to be awkward about the matter, unless a woman is undertaking a Caesarean section, she will not know the child's birth date. Will she lose the two weeks payment relating to the pre-confinement if she gives birth sooner than anticipated?
I welcome the resolution to approve the Adoptive Leave Act 1995 (Extension of Periods of Leave) Order 2004, which is a progressive measure. It is important for this committee to thank and commend adoptive parents for their valuable work. Not only have they provided a warm family setting for children, they have also provided a major service for wider society in terms of children's rights. It is important for us to express our views on the matter. While dealing with the adoption issue, we must also pay tribute to and commend parents involved in fostering who also make a major contribution to wider society. The Minister said: "In accordance with section 3(4) of the Act, both IBEC, representing employers, and ICTU, representing employees, were consulted." Was ICTU supportive after the consultations? Did it attempt to raise other issues? Did it succeed in pursuing most of its agenda? Was its agenda accepted by the Minister and his colleagues? Does the Minister agree with the sentiments I expressed about adoptive parents? I said they played a major and positive role in society.
The Seanad spent a great deal of time discussing the Adoptive Leave Bill 2004. I thank the Minister for agreeing to make it available at the earliest possible opportunity and recognise the need to bring forward the order at this point.
I ask the Minister to recognise the time spent by adoptive parents before they adopt successfully. In many cases, potential parents have to travel abroad to secure an adoption. I ask the Minister to reconsider this when he is dealing with the Bill in the Dáil. I ask him to consider allowing adoptive parents to benefit from two weeks' adoptive leave, just as natural parents enjoy two weeks' parental leave. Adoptive parents may need to spend such time travelling to various countries to secure an adoption. While I know the Minister has given his answer on this issue in the Seanad, I continue to believe we should recognise the effort and time of prospective adoptive parents. We would introduce full equality if we were to allow two weeks' leave before a child is placed in the care of adoptive parents.
I welcome Deputy Morgan. I do not know if this is the first time he has attended a meeting of the committee. The normal procedure we follow is that we invite members of the committee to contribute first. I do not want him to take it as a slight that we asked him to be the last person to speak.
Last might not be least.
We eagerly await the Deputy's contribution.
I welcome the order and hope it can be passed quickly. I am particularly pleased that it will probably be made effective at the same time as the Maternity Protection (Amendment) Act 2004. That will be useful because it will ensure there will not be any discrimination. Has the Minister considered extending the period of both paid and unpaid leave from 14 to 26 weeks? An international analysis of maternity and adoptive leave conducted last year found that Ireland, Greece and Luxembourg were bottom of the league. Did the Minister consider extending the duration of leave?
A number of the points I intended to make have been covered, but I wish to return to a point made by Deputy Costello. In the event of the death of the mother of a child, the child's father can receive 22 weeks' leave. Has the Minister considered making a similar provision in respect of a mother who loses her partner, the father of the baby, about the time of the birth? Could that feature of the order be seen as discriminatory?
I wish to deal with the last point first. As such a mother is entitled to adoptive leave in respect of her child, I presume she would avail of it if she thought it appropriate to do so. The Deputy raised the case of a mother being bereaved by the loss of her husband at the same time. It would be a different concept if we were to say there would have to be an extension of leave based on the death of a spouse. If that is a good idea — I do not intend to make a judgment on it now — it would be a matter for an amendment to the Parental Leave Act 1998, rather than something which arises solely in the context of adoption. The same would apply in respect of maternity leave.
The Deputy also asked whether extending paid leave to cover the period of unpaid leave was contemplated. I operate as the Minister to whom the report of the review group on this matter is brought. The review group includes the social partners as part of the social partnership process. I do not wish to unduly complicate the matter, but there are delicate considerations when striking the balance between the entitlement to paid leave and the desire of employers to keep Ireland competitive. One can make international comparisons if one likes, but Ireland's employment performance is not bad when compared to other countries. I know the employment issue arises at meetings of the social partners.
Deputy McGrath asked whether ICTU and IBEC were supportive after they been consulted. ICTU was strongly supportive of the measure while IBEC indicated its positive attitude, as one might expect, by saying it did not object to the matter.
Deputy Hoctor asked what would happen if somebody gave birth two days after she had started her compulsory 14 days of pre-maternity leave. Such a woman would receive the benefit of the remaining 12 days which would be added on to her period of post-maternity leave. She would not be prejudiced by the early delivery of her child.
I would like to respond to Deputy Costello who spoke about adopters and placement and Deputy McGrath who discussed the role of adoptive parents. We live in a totally different society from that of the 1950s when adoption legislation was first passed. Although adoption remains fundamentally the same in many senses, the circumstances in which it takes place have radically altered. A significant number of children were placed for formal and informal adoption in the 1960s due to social attitudes towards unplanned pregnancies at the time, but there have been radical changes since. Deputy Terry made the point that many parents had to travel abroad to try to adopt.
Deputy Costello spoke about relatives who assumed the role of parents. Tragically, it frequently happens when a young single mother who is a drug addict becomes ill. Those who take responsibility in such circumstances perform an immensely valuable social function. The placement of such family interventions on an equal footing with more formal placement and adoption arrangements should be considered in the context of the next parental leave Bill.
Deputy McGrath asked if I agreed with him about the valuable role of adopters. I absolutely agree with him in that regard. While it is the case that people are bringing children into Ireland because the supply in Ireland of children for adoption has decreased dramatically, every person in every circumstance who chooses to become an adoptive parent performs an immeasurable valuable service for society and the child in question.
The parental leave Bill which is being drafted in my Department will include a provision to allow those who assume a role in loco parentis to avail of parental leave. It will not necessarily be confined to those who assume a strictly parenting or adoptive role. Some provision will be made in the Bill for those who have an analogous relationship with a child.
What about my point?
Senator Terry fought a brave battle in the Seanad on the subject of extending foreign travel period entitlements to would-be adopters on the same basis as pre-maternity leave. It was a bridge too far for me, since I did not really have the authority of the social partners to concede that point. I regard myself as someone who achieves an arbitrated result which I translate into legislation rather than someone who decides unilaterally to impose new obligations on employers. I have no doubt that the Senator's views about leave for foreign travel have been noted and will feed into the social partners' thinking in this regard. However, I do not want to sell the pass at this stage for the reasons I gave in the Seanad.
Senator Terry made a very good point.
I welcome the fact that a new parental leave Bill is being prepared. Perhaps the Minister might give us some idea of when that is likely to see the light. I made a point about the anomaly that exists between the formal arrangements regarding adoption and informal arrangements whereby family members take over the parenting role for an orphan in tragic circumstances. It will not be dealt with by a parental leave Bill, since that deals with the period of time for which the parent will be paid. Essentially, the real issue arises with the social welfare payments that are made to the informal parents, which are 50% less than would be made if someone were formally adopted from the health board in the normal circumstances. There is a weekly loss of payment which is unfair since the same responsibilities and outgoings accrue to the family that have generously taken on board the child in tragic circumstances.
That is a matter for the Minister for Social and Family Affairs, Deputy Brennan. However, I will ensure that the Deputy's views are brought to his attention. I cannot make any promises on that now.
I wonder how long the Minister, Deputy Brennan, will take to make his mark on his brief.
There is one point where we may run into some, perhaps unavoidable, difficulty, namely, when mothers, natural or adoptive, are completing their maternity leave and will just miss out on the additional two weeks. How lenient will the Minister be with the timeframe? Will it definitely be four weeks from the date of the order being commenced? If someone happens to have just finished maternity or adoptive leave that week, will she be looked on favourably for the additional two weeks?
It is for every employee and employer to come to informal arrangements between themselves by agreement and nothing in statute prevents them doing so. The Senator must appreciate that my function here is to set the basic minimum rules. I do not prevent anyone from giving anyone any greater period of leave or from waiving any requirements, something they are legally entitled to do. I must set out a definite law. It is not a matter of me being lenient, waving some magic wand or coaxing employers. I fix a minimum in law and it is for others to enlarge on that if appropriate. While the Senator asks if I will be lenient, I can only establish a minimum and it is for others to decide whether they wish to go further.
Will the promised parental leave Bill open up the area of adoptive leave and paid parental leave to fathers as well as mothers? There is still an anomaly in that respect.
Adopting fathers will be entitled to parental leave, as is the case for adopting mothers.
Was a parental leave Bill or something similar not before the House recently? Perhaps it was unpaid.
I am told that all parents are entitled to parental leave, male and female. There is no gender discrimination against adoptive fathers.
That completes the consideration of the motion under Standing Orders. Members have been circulated with copies of the draft report. I thank the Minister and his officials for attending.
Does the joint committee have any view on whether there should be further debate on the motion in the Dáil? Is it agreed that it recommends against any further debate on the motion by Dáil and Seanad Éireann? Agreed. Is the draft report agreed, subject to the insertion of details regarding attendance and contributors to the discussion and the insertion of the Minister's speech? Agreed.