Adoptive Leave Bill 2004: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice, Equality and Law Reform (Mr. M. McDowell)

The Adoptive Leave Act 1995 was introduced to provide 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 maternity leave for women whose motherhood arises from adoption and its provisions were modelled on existing arrangements for natural mothers. It also makes provision 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 Adoptive Leave Bill 2004 seeks to amend the 1995 Act in order to apply, where appropriate, to adoptive leave the recommendations made by the working group on the review and improvement of the maternity protection legislation. The maternity working group was set up in accordance with commitments in the Government's An Action Programme for the Millennium and the Programme for Prosperity and Fairness. The working group, which was chaired by my Department, included representatives from all pillars of social partnership, relevant Departments, the Health Services Employers' Agency, the Health and Safety Authority and the Equality Authority. In late 2000, the Government accepted the recommendations of the maternity working group in full. Significantly, the Government also decided at that time to amend the Adoptive Leave Act 1995 to incorporate, where appropriate, the improvements proposed to the Maternity Protection Act 1994. The most significant recommendation, to extend the duration of maternity and additional maternity leave by four weeks each, were immediately implemented in March 2001 with identical increases applied simultaneously to adoptive leave and additional adoptive leave bringing the statutory adoptive leave entitlement which attracts payment of salary or adoptive benefit to 14 weeks and additional unpaid adoptive leave to eight weeks. The remaining recommendations of the working group of relevance to adoptive leave require primary legislation to amend the Adoptive Leave Act 1995 and these will be implemented on the enactment of this Bill.

The birth of a child requires considerable advance preparation and adjustment and this is equally true in the case of the arrival of an adopted child. The adoption process is a long and anxious journey for 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 that we ensure that those wishing to adopt or who have just had a child placed with them are given every support throughout this period. The measures introduced in the Adoptive Leave Bill will enhance the existing legislative provisions for employed adopting parents and will offer them greater employment protection and more flexibility in managing their work and family responsibilities during this important period. The decline in the numbers of children available for domestic adoption in recent years has given rise to a marked growth in the number of foreign adoptions. Adoption Board figures for 2002 show that, of the 602 adoptions authorised that year, 336 were foreign adoptions, 99 were Irish non-family adoptions and the remaining 167 were adoptions within families. Senators may also be interested to note that in the same year there were 215 recipients of adoptive benefit payments to employees by the Department of Social and Family Affairs.

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, a recent proposal on maternity leave entitlements will also be applied to adoptive leave. As Senators are aware, the Maternity Protection (Amendment) Bill 2003 currently before the Dáil 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 post-birth to 16 weeks. In the interests of maintaining parity of entitlements between adopting and natural mothers, the Government has agreed to accordingly increase the period of adoptive leave by two weeks to 16 weeks. This provision in section 3 effectively means that both natural and adopting mothers will be able to avail of 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.

As a consequence of the growth in foreign adoptions, the Department of Health and Children introduced a structured approach to 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 structured 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 and will become 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 Inter-country Adoption. This important stage of the process gives prospective adopters an opportunity to learn more about inter-country adoption so that 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 knowledge regarding inter-country adoption and a place to meet other applicants who are at a similar stage in the process where mutual support and learning can take place.

I understand courses normally comprise between six and eight, three hour sessions, giving 18 to 24 hours of preparation and are generally held over a four month period. Alternatively, some health boards run the course over three days. I understand the Department of Health and Children is currently 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 of working hours and a reduction in the time between the completion of classes and actual placement.

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 interviews, each of about one and a half hours to two hours duration, with social workers with respect to their adoption application. I understand that these interviews 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.

Some employers allow their employees paid time off from work to attend pre-adoption meetings and classes. However, many employers do not allow paid time off for this purpose which places a further financial cost on adopting parents. To alleviate this, the Bill provides for a new entitlement for adopting parents to time off from work, without loss of pay, to attend pre-adoption classes and interviews, 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 antenatal care appointments. However, it also recognises that the adoption process differs from maternity in that it requires the full participation of both parents at each stage of preparation. This new entitlement will better facilitate prospective adopting parents in meeting their work commitments while also attending the required elements of the application and assessment process for adoption.

I have set out the detailed provisions of the Bill in the copy of my speech which has been circulated to Members. If Members wish I will go through each section, but if they want to take it as read I am equally happy with that. I am in the hands of the Leas-Chathaoirleach.

An Leas-Chathaoirleach

It is up to the Members to decide.

Mr. M. McDowell

I think it would be better to take it as read. I do not wish to delay proceedings and I am anxious to hear the contributions of Members sooner rather than later.

I will refer briefly to other important developments taking place in regard to adoption. My colleague, Deputy Brian Lenihan, the Minister of State with special responsibility for children, initiated a consultation process last year on adoption legislation. It is his intention to undertake a complete review of adoption legislation with the aim of making it more compatible with life in the 21st century by ensuring that it takes account of the changes in society as well as changing trends and practices in adoption that have taken place since the 1952 Adoption Act. The consultation process was a broad ranging one examining 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 Inter-country Adoption and to make changes to the role and structure of the Adoption Board. A second draft Bill to provide for a structured and regulated way of providing access to information and contact for those affected by adoption was also considered during the consultation process. The Hague Convention on inter-country adoption needs to be ratified as a matter of priority to provide safeguards for children involved in inter-country adoption by regulating the processes by which children are adopted into this country.

Nearly 300 submissions were received from a wide range of people and organisations, including adopted people, adopting parents and natural parents. The written consultation was followed by a conference last October at which these issues were discussed in detail. The process provided many valuable insights into sensitive issues needing to be addressed, either on a legislative or administrative basis. The views garnered through both processes are currently being examined by the Minister of State, Deputy Brian Lenihan, in the context of preparing proposals for changes to adoption legislation. I understand he hopes to submit his proposals to Government before the summer. I look forward with interest to further developments in that regard.

The Adoptive Leave Bill before the House is part of a suite of statutory work-life balance measures to which my Department is committed under the Sustaining Progress partnership agreement. The Maternity Protection (Amendment) Bill 2003, which is currently progressing through the Dáil, implements in full the recommendations of the working group on the review and improvement of the maternity protection legislation. Once enacted, its provisions will strengthen and improve the employment rights of pregnant mothers and women who have recently given birth and those who wish to resume work while breastfeeding. The Parental Leave Act 1998 is also due for amendment in line with the agreed recommendations of a working group which reviewed that Act. Work is currently under way in my Department on the necessary heads of a Bill and I expect that concrete legislative proposals will shortly be brought to Government.

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

Ms Terry

I welcome the Minister to the House to deal with this important Bill. Many parents and parents-to-be will also welcome it. I regret that it has taken three years to bring it forward in contrast with the three weeks required to bring forward the Immigration Act. We can see where the Government places the emphasis. There is no excuse for the inordinate delay in bringing forward the Bill.

It is important that parents are supported as they go through the adoption process and this must be reflected in legislation. We should not differentiate between natural and adoptive parents. Many parents who eventually adopt probably go through a difficult time emotionally. Some women who are unable to bear children may decide to adopt. Others may decide to adopt from an early stage. By and large, people who adopt do so after a number of years of marriage and undergo an emotional upheaval in making a decision of this nature.

There is one aspect of the Bill on which I am seeking clarification. The adoptive leave period is being extended from 14 to 16 weeks and the Minister stated that this will bring the position into line with that which obtains in respect of maternity leave. However, maternity leave lasts for 18 weeks. It is made up of two weeks pre-birth and 16 weeks post-birth. If I am wrong, I am sure the Minister will correct me. Adoptive parents and natural parents should be treated in the same way. If the period of maternity leave is 18 weeks, the same period should also apply in respect of adoptive leave. There should be no discrepancy and the Minister stated that he would ensure equality between adoptive and natural parents.

I am not sure if the Minister has given consideration to the position of the many parents who adopt children from abroad. In some cases, such parents are required to spend time in the country in which the children they are adopting were born. That period varies but it could be anything from three to six weeks. If these parents were given leave before the adoptions take place, it could be of benefit to them if they are obliged to spend time in the country in which the children were born. We should address that matter either in this Bill or in the adoption legislation with which the Minister of State, Deputy Brian Lenihan, is dealing.

I welcome the fact that prospective adoptive parents will be entitled to time to attend pre-adoption meetings and classes. However, I do not recall a provision in the Maternity Protection (Amendment) Bill requiring that evidence of attendance at maternity classes must be furnished to employers. There is no need to include such a provision in this Bill. We must trust that people who are in the process of adopting a child will attend these classes. We do not require natural mothers to provide evidence as to whether they attend maternity classes. I do not recall a provision of that nature in the Maternity Protection (Amendment) Bill and, if that is the case, this Bill should not contain such a provision.

I welcome the vital employment protections provided for in the Bill. That time spent on adoptive leave would be considered as a period of service is important. The Bill will also prevent termination of employment, which is welcome.

When we debated the Maternity Protection (Amendment) Bill we strayed into discussing the area of child care. On today's Order of Business I raised the fact that we need to improve the level of child care provision for all parents in order to enable them to return to work or to carry on with their lives in general. Making child care available and affordable is extremely important. I was recently contacted by a number of child care providers who are concerned about the cost to them of rates. That cost has risen dramatically and is placing a major burden on child care providers. It is being passed on to parents who avail of child care services and this makes child care even more expensive. We must consider how we can reduce the cost of child care provision. More family-friendly work practices are also needed in order to enable parents to return to the workplace.

Mr. J. Walsh

Cuirim fáilte roimh an Aire go dtí an Teach chun an Bille um Shaoire Uchtaíoch 2004 a phlé. Molaim é freisin as ucht na suime atá aige an t-ábhar tábhachtach seo a réiteach.

The legislation is indicative of the caring element within the Government which seeks to ensure that everybody will be accommodated in a fair way. Child care, adoption and children in general have been tremendous priorities for the Government in recent years and the needs of adoptive parents are being recognised in this legislation.

Many people have adopted children in the past. Adoption is a most Christian act and illustrates the caring ethos that exists in our society. It has provided opportunities for children who would otherwise not have had them because of the circumstances into which they were born. The parents of such children might not have been in a position to maintain and rear them. Parents who were not in a position to have their own children have gained a great sense of fulfilment from being able to adopt children. I have always found it remarkable that in some instances it was not only parents who were unable to have children who adopted but also those who already had families of significant size. As a result of their beliefs and selfless attitudes, the latter adopted children and reared them to be tremendous citizens. Adoption is deserving of support and recognition and the Bill provides these.

As the Minister correctly pointed out, there has been a trend in recent times towards the adoption of foreign children. Many people have travelled abroad to adopt and have invested a great deal of effort into securing adoptions. The children they brought back to this country will be reared as Irish citizens and will have access to all the opportunities we have enjoyed as a result of our citizenship of this State.

As the Minister indicated, the Bill came about as a result of a commitment in Sustaining Progress. The latter emerged from our system of social partnership, which has been of significant economic benefit to this country. In the late 1980s, the Government of the day pioneered this new and enlightened approach to society and the country's economic well-being. At that time there were serious challenges to that well-being and unemployment had reached significant levels. Social partnership has been an important component in ensuring the country's economic well-being and in securing the improved and enhanced lifestyle people now enjoy.

The recent report on Seanad reform recognises that there is, perhaps, a certain gap between what happens within the social partnership framework and the Houses of the Oireachtas. I welcome the recommendation in the report that the Seanad should play a greater role in addressing that lacuna and have increased interaction and liaison with the social partners. I hope this recommendation will be taken on board in terms of changing the structure and the functions of the House.

There is a belief that much of the social legislation we are putting in place is having some effect on small businesses. It is important we are mindful and measure that as we make the necessary changes. As was stated here previously, competitiveness will, ultimately, determine our economic sustainability. It is in everybody's interest that we remain competitive.

It is right and just that people who adopt children enjoy the same entitlements as natural parents for the rearing of those children, particularly in the early stage which allows them to bond with the child and come to terms with parenthood. The Government should be commended for providing for this in this legislation. I am glad to support this Bill.

Mr. Kett

I welcome the Minister to the House. I also welcome this Bill which amends the Adoptive Leave Act 1995. This legislation came about following the recommendations of the working group established for the purpose of amending that Bill. The Adoptive Leave Act 1995 provided additional weeks' leave to adoptive parents at the time. One of the main provisions of the Bill is to increase that time further.

Senator Terry raised the issue of the number of weeks' leave for adoptive versus natural parents, 16 versus 18. One can understand how this happens. A biological mother may need time off prior to the birth of the baby to deal with medical problems an adoptive mother would not necessarily have. I remember when it was recommended that the pregnant mother should take four weeks of her leave prior to the birth of the child. This has now been reduced to two weeks. Is that regulation established in law?

When the recommended period was four weeks, pregnant mothers were inclined to hang on as long as they could before taking leave, sometimes at risk to themselves, in order to have as much time as possible with their child after the birth. I remember when I worked in the Mater Hospital we went out one Friday evening, as traditional, to have drinks with a girl from my department who was taking maternity leave and to celebrate the pending arrival of her child. About two hours into the session we discovered that the expectant mother was not there. On her way to the pub she had to detour to Holles Street hospital to have her child. This woman may have taken a chance by working right up to her delivery. Perhaps doctors were in cahoots with such women. Some people say they were at the time and that they were willing to change expected arrival dates, etc. Women ran a risk by trying to arrange matters so they could take most of the time off after the birth of the baby and sometimes forfeited their health by staying at work too long. However, 20 years on I am sure this woman's child is getting on well.

The fact that we are discussing further equality legislation today confirms the Government's commitment to the equality agenda. The increased leave period and the other improvements recommended by the group are evidence of the growing awareness of the need for greater balance between working and family time. The implementation of the recommendations will make the workplace a better place for pregnant women and new mothers.

Senator Terry mentioned the problem of the lack of child care facilities. The legislation being introduced today will alleviate this in some way through increased parental leave for adopted children. However, while the situation may be alleviated somewhat, child care remains a serious problem. Perhaps the Minister for Finance would consider giving some form of tax relief to mothers and parents who must pay for expensive child care facilities in order for them to continue in the workforce. Only a few years ago we were crying out for people to stay in the workforce and were seeking ways to try and get more people into it. Such an incentive would encourage people.

The achievement of the working group in reviewing maternity protection legislation in its entirety is commendable. The group has done a significant job in the area of this complex legislation. The Department of Justice, Equality and Law Reform also faces a ferocious task in dealing with this and with equality legislation which ranges over issues from disability to equality at work etc. The Government is doing a fine job in that regard and I hope this continues.

Senator Jim Walsh mentioned small businesses. Approximately 40 pieces of legislation have been introduced in the equality area since 1997 and there is no doubt but that these have an impact on small businesses. Has any study ever been done on the impact of this legislation on small businesses in terms of their ability to survive and create jobs, rather than lose them? In terms of the minimum wage, I heard talk that small businesses stood to lose 14,000 jobs. It has been said that 29,000 jobs are at risk overall because if there was no increase another 15,000 jobs could have been created. I raise this matter in the context of our ability as a country to continue to create jobs in small businesses.

If we consider the legislation currently under discussion in the context of a business with ten employees, if three of the staff were on leave at any one time — maternity, adoptive or sick leave — this would have a serious impact on the company which might only be surviving by a thread. Flexibility is important for such small businesses. However, flexibility has tightened as a result of the amount of legislation that has been passed in recent years on contracts, dismissals, equality of working time, redundancy, parental leave, now adoptive leave, stress and bullying. We have had a plethora of conditions, including the major one of health and safety regulations, placed on small businesses. These could have a significant impact on the ability of these companies to survive. We must be careful of the collective impact legislation has on such industry. However, in terms of creating equality for all workers, this legislation is commendable.

Ms O’Rourke

I thank the Minister for Justice, Equality and Law Reform, Deputy McDowell, and the Minister of State, Deputy Brian Lenihan, for coming to the House to debate this fine legislation. I wish to comment on something Senator Kett said but not in a combative manner because I recognise that he researches his topic and speaks well on any issue. If we should say that equality issues should not apply to small firms, we would not be following the equality agenda. It is the right of women, or either parent in the case of adoptive parents, to avail of maternity or adoptive leave. A firm cannot be allowed to opt out on the basis that it is a small firm. That would negate the whole equality agenda. The issue has often been raised with me, so I understand the Senator's point. However, I do not accept it.

I welcome this excellent legislation which was strongly recommended in Sustaining Progress. On reading it I could see how sensible and practical the arrangements were. My family came about at a time when there was no legislation. Women had their babies and if they had a job they went back to work and if they did not they just got on with life. That was accepted because people knew no better.

Mr. Kett

Civil servants did not go back to work.

Ms O’Rourke

I did not know that; I was a teacher, but that is beside the point. I always thought that while the maternity leave provisions were excellent they discriminated against adoptive parents. Childbirth is a natural process. Fortunately, very few women have difficulty with childbirth. In cases where they do, they are helped medically. In the context of maternity leave, helping a mother to recover was never the point. The point of it was to allow the mother and child time together to bond, to use the modern word, to get to know and love one another and to allow them to go through that very happy process untrammelled by the duties of paid work outside the home. I thought it was a very good idea. However, it led me to realise, because I went through an adoption process myself, although there was no maternity leave then so it would have made no difference, that an adoptive mother also needs time to bond and get to know and to love her new child. This is, therefore, a very common-sense and practical approach which I strongly welcome.

I also welcome the change regarding the four weeks a woman had to take before the birth, which the Minister for Justice, Equality and Law Reform, Deputy McDowell, mentioned. It was all very well, but it led to doctors and mothers telling white lies about when the child was expected. In the natural process of pregnancy and birth a woman could be out and about until a day or two before giving birth. Laying up and putting up one's feet was the old fashioned way and does not hold any more.

I highly commend the Adoptive Leave Bill 2004. I also commend the idea of providing classes. Unmarried women are having babies and keeping them, which is good. Inter-country adoptions are very much on the cards now. Again, classes are being provided to familiarise people with the culture and mores of the country where the adopted child was born. The Minister of State at the Department of Health and Children, Deputy Brian Lenihan, has received more than 300 submissions in the consultative process in which he is engaged. The Minister for Justice, Equality and Law Reform, Deputy McDowell, referred to this in his speech in the context of bringing the adoption law up to date and amending the legislation. It is a major process and not one to be entered into lightly given the sensitivities, proprietorial feelings etc. that must be taken into account. There are issues that may arise later in life for the adopted child when he or she reaches adulthood. Similar issues will arise for the natural mother and the adoptive parents. These are not issues which are easily addressed and I commend the care that has been taken in dealing with them. The intention to reform the relevant legislation was announced some years ago, but it is better to adopt the maxim festina lente in this matter and take the time to hear a variety of views. That more than 300 submissions were received is significant and illustrates the amount of interest there is in the issue.

Senators Kett and Walsh have long experience in the field of justice, equality and law reform, whereas I speak from a more personal viewpoint on the matter. My experience was many years ago when there was no legislation of any kind. Were it not for what Senator Kett told us I would not have known the Civil Service had maternity leave then. I doubt it. I have never heard that it had.

Mr. Kett

What I said was that civil servants could not go back to work.

Ms O’Rourke

Who could not?

Mr. Kett

A civil servant could not.

Ms O’Rourke

That was a long time ago. I was teaching and was welcomed back, but the Senator can imagine all the fuss and the arrangements that had to be made following one birth and one adoption. At that time when one adopted a child through an adoption agency, one was encouraged to stay at home for a year in order to get to know the child and give it the care it required. It was not mandatory, but it was encouraged. I do not know whether that is still the case.

The Adoptive Leave Bill 2004 is a very good, modern Bill. It is certainly high on the equality agenda. I strongly approve of it and commend it to the House.

Ms White

Debate adjourned.

Seanad Éireann debate - Thursday, 20 May 2004

Adoptive Leave Bill 2004: Second Stage.

Seanad Éireann debate -
Thursday, 20 May 2004