Seanad Éireann debate -
Wednesday, 26 May 2004

Vol. 176 No. 17

Adoptive Leave Bill 2004: Committee Stage.

Sections 1 and 2 agreed to.

SECTION 3.

Ms Terry

I move amendment No. 1:

In page 4, line 17, after "placement" to insert ", or earlier by agreement,".

This amendment seeks to make the Bill more user-friendly and clear. There may be circumstances in which it would be better for both parents and employers to begin adoptive leave just before the placement date. The provisions of the Bill in this regard are rigid. The amendment seeks to provide some flexibility so that, where there is agreement on all sides, adoptive leave may be taken earlier. As I explained previously, adoptive parents must make preparation for their baby in the same way as natural parents. While the circumstances are different, if there is to be full equality, as the Minister said on Second Stage, provision should be made for adoptive parents to prepare for their baby in the same way as natural parents. Where possible, two weeks leave should be provided before adoptive parents get their baby. This may not always be possible because sometimes adoptive parents get just one day's notice that they are getting their baby. Where there is time for that preparation, parents should be given an opportunity to inform their employer. Employers should know that parents are entitled to take this time off. I ask the Minister to accept my amendment.

Mr. J. Walsh

While the amendment might appear plausible, the Bill is a fairly significant step forward for adoptive parents. It will bring them into line with natural parents in this area, which is a good initiative. However, we must also be mindful of maintaining a balance. It is an imposition on employers, particularly on small employers, which must be recognised. Building into the legislation such a proposal could give rise to difficulties. There is a difference between an adoptive parent and the natural parent who bears the child. When it comes close to the birth of a child, it is probably prudent that parents should be able to take leave. The same does not apply in the case of adoptive parents. While I am aware that people travel abroad and so on, I am not sure it would be wise to move in this direction.

The Bill is a major step forward but we must be mindful of the balance that must be maintained. We have embraced much of the social legislation coming from Europe, which imposes responsibilities on employers. It must be recognised that there are other states and economies within Europe who have secured derogations and have not embraced these social changes to the same extent. We must be mindful that everyone, including adoptive parents, should be treated fairly. I am not sure the argument is sufficiently strong to make the change sought.

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

The Adoptive Leave Act 1995 requires that adoptive leave may only be taken from the date of placement. The purpose of the legislation is to provide an entitlement to leave from employment for adopting mothers, equivalent to that of maternity leave entitlement available to natural mothers, so that both natural and adoptive mothers, and children, can benefit from the full-time care and attention of the mother from the first 16 weeks after the birth or placement.

A limited period of maternity leave must be taken before the birth, but it is not preparatory to the birth. The leave is provided to a mother in the last stages of pregnancy for health and safety reasons, which does not apply in the case of adoptive parents. It is not provided so that one can go out and buy a pram and so on. It is provided because it is thought that, coming up to the onset of labour, there are significant health and safety implications for employers.

While I agree there should be no invidious discrimination between adoptive and non-adoptive parents, the fact is that there is a difference. The need for the two week health and safety margin prior to the end of a full-term pregnancy is in the interest of the mother. In the event that an adopting mother requires time off pre-placement for familiarisation purposes, she can take some or all of the eight weeks additional unpaid adoptive leave prior to placement in accordance with section 8(5) of the Adoptive Leave Act 1995, while retaining the right to take all of the paid adoptive leave after placement. It is therefore possible to take an unpaid period off, two weeks prior to a placement. What would someone be doing in those circumstances? If the child is not placed, I imagine that the person would simply be making domestic arrangements such as buying baby goods. It is hard to see the analogy between the two week period for health and safety reasons and the period prior to placement. If there was a genuine reason someone in those circumstances wanted to take a week off, they could do so but the leave would be unpaid. There is always a risk, right up to the date of placement, that an adoption may not take place. In that context, what are we doing? Every pregnancy has its risks but they are not the same. The health and safety issue at the end of pregnancy is there regardless of risk; in fact it is maximised if there is risk.

I agree with Senator Jim Walsh that this is being done at the expense of employers, including small employers who have to carry significant costs at present. This country is struggling to remain competitive. I was looking at figures on growth in Irish wages in recent years compared with other countries in Europe and we are way ahead of them. I do not want to put an additional obligation on small and medium sized employers to furnish two weeks paid leave prior to an adoption. The analogy with pregnancy does not hold water. In the circumstances, I am not disposed to accept the amendment.

Ms Terry

I will take on board what the Minister has stated before Report Stage. I was about to take exception to Senator Walsh's comments that this was an imposition on employers. I was even more surprised that the Minister endorsed what he said.

Mr. J. Walsh

It is a financial burden.

Ms Terry

At this stage, when we are dealing with equality issues, we should not even be mentioning such ideas. A very small number of people adopt children each year. Any privileges that are extended to them are done so by right. We should not speak of this as an imposition on employers, it is a right. Employers have to accept that and I take exception to the tone of language employed here when dealing with an equality issue. We do not speak about the imposition on employers when granting leave to pregnant women. In the same way, we should seek to obtain equality between natural parents and adoptive parents.

Amendment, by leave, withdrawn.

Mr. J. Walsh

Can I speak on the amendment again?

An Cathaoirleach

The amendment has been withdrawn.

Ms Terry

I move amendment No. 2:

In page 4, line 18, to delete "16" and substitute "18".

We should have taken amendment No. 2 with amendment No. 1 because it reiterates that the leave period granted to adoptive parents should be 18 weeks. In view of the fact that I am reconsidering whether the two weeks prior to placement should be granted, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Ms Terry

I move amendment No. 3:

In page 4, line 19, after "period" to insert "shall be reviewed annually and".

I welcome the fact the Minister has the power to extend the period of adoptive leave. if this is to be properly utilised, the Minister should be obliged to review the period from time to time. In this amendment I propose that he should review it on an annual basis.

Mr. J. Walsh

The amendment is unnecessary because the Bill states the minimum period may be extended by order by the Minister. It therefore provides ministerial discretion to do that at any stage and not just annually.

I want to comment on this and other legislation as an imposition on employers. This is a progressive measure as it recognises the role of adoptive parents for the first time. It equates them with natural parents, which is a good development. However, there is a cost factor involved for employers. We need to be mindful of legislation which impacts on small businesses or even large businesses. Our competitiveness is crucial to the economy and if business is not succeeding, people will not retain their jobs regardless of whether they are natural or adoptive parents. It is easy to be Santa Claus in this House when most revenue raised emanates from workers and employers.

An Cathaoirleach

With all due respects to the Senator, the provision to allow the Minister to review the period of adoptive leave annually is no imposition on employers.

Mr. J. Walsh

The rug was taken from under my feet when two amendments were withdrawn. This was the earliest opportunity I had to get back to my point.

Mr. M. McDowell

Reviewing statutory periods such as adoptive, maternity or parental leave, is a matter for consultation and negotiation, usually by Government with the social partners through the partnership process, where the views of all relevant stakeholders are taken into consideration. The current social partnership agreement, Sustaining Progress, includes a Government commitment to amend the Adoptive Leave Act 1995, and to implement the appropriate recommendations of the maternity review group. This group was established under the previous social partnership agreement, the Programme for Prosperity and Fairness. It would not be adequate to put in a requirement for annual review in these circumstances.

Senator Terry is free to claim that where equality is concerned, costs cannot be mentioned, but I do not agree with that proposition.

Ms Terry

The Minister should not take my comment out of context.

Mr. M. McDowell

I do not agree with that proposition. The purpose of the Bill is simple. It is to give adoptive parents the same amount of time to bond with their child as natural parents have for their children. The two extra weeks to which we referred is not bonding time. They were given as a health and safety measure in the context of employment. The health and safety consideration simply does not exist for adoptive parents and before equality becomes a religion, we have to work out whether we are talking about equal or analogous situations.

Mr. D. McDowell

Can I make a contribution?

An Cathaoirleach

We are on amendmentNo. 3.

Mr. D. McDowell

I appreciate that.

An Cathaoirleach

It is about reviewing it annually.

Mr. D. McDowell

I am clear about the general nature of the amendment but if I could make one point it will save me trying to find some other excuse to make it later. It does not refer specifically to the issue of equality the Minister talked about but another issue of equality, that is, as between both parents. It appears there is a difference in essence between adoptive leave and a mother getting leave in the case of a natural birth. It is clear there is not the same physical element of the need for recovery on the part of the mother as there is in cases of natural birth. This was an opportunity for greater equality in terms of the breakdown of the leave as between both parents or an allowance could have been made to allow the adoptive father take a greater proportion of the leave that has been allowed and which I understand must be taken by the mother. I am sorry that opportunity was not taken in the Bill.

Ms Terry

The Minister will be obliged to review this matter from time to time. I was simply trying to make it an obligation to review it annually. That was not too much to ask but I will withdraw the amendment.

Amendment, by leave, withdrawn.

Section 3 agreed to.

Sections 4 and 5 agreed to.

SECTION 6.

Mr. D. McDowell

I move amendment No. 4:

In page 5, to delete lines 20 to 26 and substitute "period of 8 weeks.".

I apologise for the absence of my colleague, Senator Tuffy. She is unwell but I hope she will be here later.

The amendment seeks to amend the provision covering cases where the mother dies during the course of the leave. As I understand the existing provision, the adoptive father simply takes over the remainder of the leave that would have been available to the mother. I am not sure whether that makes a great deal of sense in the circumstances. We are looking to facilitate the father in doing the bonding that the mother was not able to do, to use the Minister's words. It appears reasonable in the circumstances that, irrespective of when during the course of the leave the mother dies, the father would be entitled, at a minimum, to the full eight week period as opposed to just filling in the remaining period that would have been available to the deceased mother.

Mr. M. McDowell

This amendment would effectively grant an adopting father a minimum of eight weeks' additional adoptive leave and would be inconsistent with the leave provisions applicable to natural fathers in similar circumstances. In the context of its review, 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. The increased leave provisions are also available to bereaved fathers in certain circumstances, depending on the date the adopting mother dies. However, the group made no recommendation to increase fathers' leave in the manner prescribed by Senator Tuffy and Senator McDowell. I am not prepared to accept an amendment which would provide in some circumstances a right to a significantly greater period of leave.

This matter has been the subject of a review group. This review group has emanated from and been conditioned by partnership talks, and I do not at this stage propose to unilaterally, to use Senator Walsh's phrase, get into Santa Claus mode and begin to add on extra bits which were not part of the balanced package agreed by the social partners.

Mr. D. McDowell

I am disappointed and a little surprised by the Minister's attitude. I have never known him to bow down quite as low at the alter of social partnership previously. Indeed, had I known he would take this approach I am sure we could have come up with some of his past rosy quotes on social partnership.

On a more serious level, this amendment is very narrow and would refer to a relatively small number of adopting parents. While not expecting the Minister to accept it today, the least we could ask him to do is to consider it again. I understand the Bill has to go through the Dáil and perhaps he might have a look at it in the meantime. I cannot imagine the cost implications would be great, nor can I imagine that either of the social partners would have a major objection to it. It is a matter of some detail.

Amendment, by leave, withdrawn.

Section 6 agreed to.

SECTION 7.

An Cathaoirleach

Amendments Nos. 6 and 7 are alternatives to amendment No. 5 and amendments Nos. 5 to 7, inclusive, can be taken together. Is that agreed? Agreed.

Ms Terry

I move amendment No. 5:

In page 5, line 35, after "meetings" to insert ", including any overseas meetings, familiarisation visits, interviews or assessments,".

This section, and indeed the Bill, takes no account of parents who adopt children from outside the country. That is the position for most adoptive parents due to the small number of babies that are put up for adoption here. Increasingly, parents have to go abroad to adopt their child but the current wording of the Bill does not recognise that fact. While I welcome the fact the Minister is providing time off work without loss of pay for parents to attend pre-adoption classes and meetings, he is now making that provision even more strict by saying these meetings and pre-adoption classes have to be held within the State. That is going even further than the initial proposal.

I made the point the other day that we should be making provision for people who have to travel to these countries and make arrangements to visit the orphanage or wherever they have to go, which takes time. In some countries there is a requirement on parents to spend a number of weeks in the country before they can leave with the child but there is no recognition of that in the Bill. The inclusion of the Government amendment in the Bill is making that provision even stricter. Without the Minister's amendment one could argue that they have to attend a meeting outside the country but it will now be impossible to do so. I ask the Minister to withdraw the Government amendment and leave the wording as it was but accepting my amendment would give recognition to parents who have to leave the country. People will not abuse this measure. We are talking about a small, special group of people who find themselves in this position.

My amendment No. 6 also refers to the fact that parents have to inform their employer of such meetings and classes. That appears to be a small-minded requirement. If parents have to travel to meetings outside the country it will take some time and I understand why that should be vouched, but I ask the Minister to make the Bill more relevant to the people we are trying to help and not to keep it in the dark ages, which will not be helpful in the long term.

Mr. D. McDowell

This amendment is of some importance. Until a few years ago, the process of foreign adoption was relatively swift, and in some countries too swift. The Irish authorities have been to the fore in insisting the procedures in countries such as Russia and China, for example, are brought more in line with what we regard as being acceptable. As the Minister well knows, Irish law is quite rigid on this matter in that they have to be broadly similar processes, for example on issues such as finality. One of the results of this is that there are now lengthy processes in place for couples who want to adopt a child in parts of the former Soviet Union, which can easily entail them staying there for a week or two, and frequently more than once. We know well the difficulties in getting by the clearance processes operated by our health boards, and the additional trauma that is imposed by having to stay in fairly inhospitable parts of the world. The least we can do is offer this measure of legislative support to those individuals, ensuring they do not face additional difficulty in getting time off work and so on. I do not suppose it is terribly relevant but I agree with Senator Terry when she says it will not be abused. Very often children are adopted in countries where one would not choose to go on holiday, for example, Siberia or parts of China——

Mr. J. Walsh

Why not?

Mr. D. McDowell

——unless one had a sense of adventure which went beyond mine. We are not talking about Tuscany or the south of France but inhospitable parts of the world where people are obliged to spend time — they do not do so by choice — in a tortuous process, the result of which is not certain, in order to comply with the proper requirements of those countries. I urge the Minister to give serious consideration to this amendment. If he is not satisfied with its formulation, he might come back with a similar amendment at a later stage.

Mr. M. McDowell

As Senator McDowell is surprised at my obeisance to social partnership, I am delighted that China and Siberia are off his holiday destination list. It is amazing what has happened since the collapse of Communism.

We are dealing here with a matter of some significance. Section 7 puts a new section 11A into the Act. It allows that "an employee shall be entitled, in accordance with regulations made by the Minister, to take time off from work, without loss of pay, to attend any pre-adoption classes and meetings which the employee is obliged to attend". If this facility is to be extended to trips to places, such as India, and other places where adoptive children are available, it could impose a huge cost on an employer in addition to the cost of adoptive leave. It could be a colossal blow to a small firm if an employee were to go twice to India for pre-adoption meetings and then take 16 weeks adoption leave. That would be an enormous expense to an individual employer. We cannot continue to load such obligations onto employers.

Would-be adopters who travel abroad to adopt children are making a considerable sacrifice on occasion, but it is important that they do so. It is important that they understand the society from which they are bringing a child home to Ireland to adopt. However, it is not fair to say to a small or medium sized employer that he or she must foot the bill, to the extent of paying wages throughout the period, for a three week trip to one of these countries. That is not reasonable. Unpaid leave for potential adoptive parents would be one thing but that is not what is being suggested. A small and medium sized employer, who is under pressure and is dealing with competition from other companies, cannot be expected to give paid leave for two trips, perhaps six weeks in a year, plus another 16 weeks if it comes to an adoption, which is not certain in these cases. That would be a significant penalty for an employer.

The measure I propose is reasonable and fair to both sides in the equation and is supportive of adoptive parents. The suggestion that employers should pay for what could be lengthy periods abroad is not acceptable.

Ms Terry

It is neither reasonable nor fair not to provide some leave. I may be asking for too much but there should be some recognition of the difference between adopting a child and the birth of a child to natural parents. I ask the Minister to consider this amendment before the next Stage. Perhaps we should be talking about unpaid leave.

There must be a recognition of the situation as it exists today. Does the Minister or his officials know how many children have been adopted in Ireland, the number who have been adopted by Irish parents abroad and the number of Irish adoptions? We need to get those figures so that we can see how many people are required to travel abroad to secure an adoption and how many visits that entails. To leave matters as they stand is much too restrictive and is not of benefit to adoptive parents.

Progress reported; Committee to sit again.