Law guide: Employment

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Paternity leave - UK and overseas adoptions

Paternity leave - UK and overseas adoptions

Contents

Paternity leave – adoptions

Adoption includes a child adopted from a surrogate mother where a couple have applied for a parental order. It also includes foster children who are adopted under the 'Fostering for Adoption' scheme run by local authorities.

Different rules and criteria apply depending on whether the employee or their partner is adopting a child from the UK or from overseas.

Paternity leave - UK adoptions

Qualifying for statutory paternity leave

An employee qualifies for paternity leave when adopting a child from the UK if they:

  • Are either one of two parents jointly adopting a child or married to or the partner of the person adopting the child
  • Have or expect to have responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter
  • Are not taking statutory adoption leave and pay
  • Have been continuously employed by you for at least 26 weeks ending with the week in which they are notified of having been matched with the child
  • Continue to work for you up to the date of the child's placement
  • Will be taking time off for the sole purpose of supporting the adopter and/or to care for the child

When must they provide notice?

An employee must notify you when they want to take paternity leave no more than seven days after the adopter is notified that they have been matched with a child. This is the date that the adoption agency notifies the employee of the details of a child that they believe is suitable for adoption. This is known as the 'match date'.

Contents of notification

To qualify for paternity leave an employee should notify you of their intention to take paternity leave and specify:

  • The match date
  • The date on which the child is expected to be placed (start living) with the employee (the expected date of placement or EDP)
  • The date when the employee wants to start their leave
  • How much leave they want to take

If it is not reasonably practicable for the employee to provide the notice by the required time then you should be notified as soon as it is becomes reasonably practicable for the employee to do so.

You can request the employee to provide this notification in writing.

You can also request the employee to provide a written declaration stating that they satisfy the conditions that entitle them to take paternity leave and that they will be taking the time off to support the child's adopter mother and/or care for the child.

You do not have to give the employee confirmation of the end date of their paternity leave.

Notice of placement

In addition, the employee should provide you with a further notice as soon as reasonably practicable after the child's placement, of the date on which the child was placed. You can request the employee to provide this notice in writing.

The start and duration of paternity leave

Eligible employees can choose to take either one or two whole weeks' statutory paternity leave. They cannot take it as odd days or as two separate weeks.

The duration of paternity leave remains the same regardless of the number of children that are being adopted in a single adoption (e.g. adopting twins).

Paternity leave can begin any time from the date of the child's placement with the adopter but must be completed within 56 days of this date.

The employee can choose to begin their paternity leave on one of the following dates:

  • The date on which the child is placed with the adopter, even if this is earlier or later than the EDP (If the employee is at work on that date, their leave begins on the day after)
  • Another date chosen by the employee that takes place after the EDP
  • A date falling a specified number of days after the EDP

Changing the start date of leave

The employee can change the date when they want their paternity leave to start so long as they give you the following notice which you can request that they give to you in writing:

  • If they want to change their leave so it starts on the date the child is placed with the employee, at least 28 days before the first day of the EDP
  • If they want to change their leave so it starts on a particular date, 28 days before that date
  • If they want to change their leave so it starts a specified number of days after the placement date, at least 28 days of the expected start of their leave. For example, if the employee wants to start their leave 14 days after the actual placement date and the EDP begins on 16 July, this means that the expected start date of their leave is on the 30 July and they must give you 28 days' notice of this date, i.e. by 2 July.

Please note that in the case of the last option, if the date when the employee's leave starts turns out to be different (as the date that the child is actually placed differs from the EDP) then the employee will not be required to provide you with a new notice.

Where an employee has chosen to begin their period of paternity leave on a particular date and the child is not placed with the employee on or before that date then the employee must vary their choice of start date using one of the above-mentioned options. In these circumstances, the employee should:

  • Discuss the situation with you as soon as possible
  • Give the appropriate notice varying the start date

You are not under any obligation to accept notice of a change of date if you are not given the correct amount of notice (although you can use your discretion to choose to do so). However, if it is not reasonably practicable for the employee to give you this notice in time, then it should be given to you as soon as it becomes reasonably practicable to do so.

Paternity leave - overseas adoptions

Qualifying for paternity leave

An employee qualifies for paternity leave when adopting a child from overseas if they:

  • Are either one of two parents jointly adopting a child or are married to or the partner of the child's adopter
  • Have or expect to have responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter
  • Are not taking statutory adoption leave and pay
  • Have worked for you continuously for at least 26 weeks ending with the week that the adopter receives 'official notification' or by the time they want their paternity leave to begin, whichever is later and continue to work for you up to the date of the child's entry into the UK
  • Will be taking time off for the sole purpose of supporting the adopter and/or to care for the child
  • Have given you the correct notification

Official notification is written notification issued by or on behalf of the relevant domestic authority (usually the Department of Education) that the authority either:

  • Is prepared to issue a certificate to the overseas authority dealing with the adoption of the child
  • Has issued a certificate and sent it to that authority

In either case, the notification certificate confirms that the other or main adopter:

  • Is eligible to adopt
  • Has been approved as being a suitable adoptive parent

Contents of notification

To qualify for paternity leave, an employee should notify you of their intention to take it and specify:

  • The date on which the other or main adopter received the official notification
  • The date on which the child is expected to enter the United Kingdom
  • The date upon which the employee wants to start their leave

You can also request the employee to provide a written declaration stating that their partner or spouse has received an official notification and confirming that they are married to or the partner of the child's adopter and have or expect to have responsibility for the child's upbringing with the other joint adoptive parent or the individual adopter. This should be provided to you within 14 days of your request.

You do not have to give the employee confirmation of the end date of their paternity leave.

When must they provide notice?

Where the employee already has the necessary 26 weeks' qualifying service when the adopter receives the official notification, they must give you the above information within 28 days of the adopter receiving the official notification. At this point, the employee should know roughly when the child will enter the country.

Where the employee receives the official notification before they have the necessary qualifying service, they must give you notice within 28 days of completing the 26 weeks' qualifying service. Again, at this point, the employee should know roughly when the child will enter the country.

Notice of entry

A further notice will be required after the child has entered the United Kingdom. The employee must tell you the date when the child entered the UK within 28 days of the child's date of entry.

You can request the employee to provide this notification in writing.

Employees must tell you as soon as is reasonably practicable if they find out that the child will not be entering the United Kingdom and that the adoption is not going ahead.

The start and duration of paternity leave

Eligible employees can choose to take either one or two whole weeks' statutory paternity leave. They cannot take it as odd days or as two separate weeks.

The duration of paternity leave remains the same regardless of the number of children that are being adopted (e.g. adopting twins).

Paternity leave can begin any time from the date of the child's entry into the UK (the date of entry) but it must be completed within 56 days of this date.

The employee can choose to begin their paternity leave on one of the following dates:

  • The date of entry
  • Another date chosen by the employee which takes place after the date of entry

Changing the start date of leave

Employees can change their mind about the date on which they want their leave to start provided they tell you at least 28 days in advance of the new date.