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Statutory adoption pay and leave: a guide - children due to be placed on or after 1 April 2007. Part 3/3

URN No: 08/809/C

Part 3

Unlike adoption, under a SGO the parents remain the child's parents and retain parental responsibility, though their ability to exercise their parental responsibility is extremely limited.

7. Foster Carers
8. Adoptions from overseas

7. Foster Carers

Foster carers who go on to become adopters of a child

Foster carers who go on to become adopters of a child they have fostered will qualify for statutory adoption or paternity leave and pay if they satisfy the relevant eligibility criteria for each entitlement.

The key criteria are:

• that the individuals must have been matched with the child for adoption by an adoption agency; and
• that the child will be placed with them for adoption.

In addition the employee must have 26 weeks’ continuous service with their employer by the time they are notified they have been matched with the child for adoption. To be eligible for Statutory Adoption or Paternity Pay the employee also must have average earnings of at least a certain level. These criteria apply to adoption and paternity leave and pay.

Where foster carers are fostering a child that has not been matched and placed with them for adoption by an adoption agency, but apply to the court for an adoption order to be made they will not be eligible for statutory leave or pay. This is because statutory adoption leave or pay is intended to support the care of a child placed for adoption by an adoption agency during the initial stages of the placement.

If foster carers who have become adopters satisfy the relevant conditions, their entitlement to leave and pay will relate only to the placement for adoption. The time the child was fostered by them is not relevant to statutory leave or pay.

The employee’s length of service will be assessed according to the date on which the adopter was notified they have been matched with a child for adoption. The employee’s notice that they wish to take adoption or paternity leave must be given within seven days of receipt of notification they have been matched with a child for adoption.

Adoption leave and SAP may begin up to 14 days before the expected date of placement for adoption. Paternity leave and pay may begin on or after the date of placement for adoption and must be completed within 56 days of that date.

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Special guardianship

Statutory adoption leave or pay is not available to special guardians, though they may take parental leave. A person becomes a special guardian for a child when a court makes a special guardianship order (SGO). This gives them parental responsibility for the child and allows them to make all the day-to-day decisions in caring for the child or young person and for taking any other decisions about their upbringing, for example their education.A special guardian may exercise parental responsibility to the exclusion of others with parental responsibility, such as the birth parents, and without needing to consult them in all but a few circumstances.

Unlike adoption, under a SGO the parents remain the child's parents and retain parental responsibility, though their ability to exercise their parental responsibility is extremely limited.

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8. Adoptions from Overseas

OFFICIAL NOTIFICATION

Official notification means a written notification, issued by or on behalf of the relevant domestic authority, that the Central Authority is prepared to issue a certificate to the overseas authority concerned with the adoption of the child, or has issued a certificate and sent it to that authority, confirming, in either case, that the adopter is eligible to adopt and has been assessed and approved as being a suitable adoptive parent.

A copy of the official notification is needed as proof of eligibility for SAP and a declaration that it has been received is needed to claim SPP. This evidence must also be provided to qualify for adoption or paternity leave if the employer requests it.

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Adoption leave and pay when a child is adopted from overseas

Eligibility for adoption leave

To qualify for adoption leave when a child is adopted from overseas, employees must:

• Be the child’s adopter – that is, a person by whom the child has been or is to be adopted, or in a case where the child has been or is to be adopted by two people jointly, whichever of tem has chosen to take adoption leave in respect of the child;
• Have received official notification confirming the Central Authority has, or is prepared to, issue a certificate confirming the employee is eligible to adopt and has been assessed and approved as being a suitable adoptive parent;
• Have worked for their employer continuously for at least 26 weeks by the time adoption leave is due to begin;
• Give their employer the correct notification (see Notice for adoption leave below).

Adoption leave and pay is not available to employees if they have not been assessed and approved as being a suitable adopter and so have not received an official notification. Employees adopting a child from overseas who is already a relative may qualify if they have followed the due process, have been assessed and approved as being a suitable adoptive parent and have received an official notification.

When leave and pay can start

Employees may choose to start their leave:

• From the date the child enters Great Britain
• From a fixed date (as notified to their employer) no later than 28 days after the date the child enters Great Britain

The leave can start on any day of the week.

Statutory adoption leave is not meant to be used to cover the period employees spend travelling overseas to arrange the adoption or visiting the child. Employees should talk to their employers about other leave arrangements to cover this period.

If the child ceases to live with an employee during the adoption leave period, the employee can continue adoption leave for up to eight weeks after this point.

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Notice for adoption leave

There are three stages for giving notice of adoption leave when a child is being adopted from overseas. Employees must give the information required in writing if the employer requests it. If they are also entitled to SAP they must also give the evidence required (see Evidence required for SAP below).

First stage:

Employees must inform their employer of:

- The date on which they received official notification; and
- The date the child is expected to enter Great Britain.

In most cases (where they have the necessary 26 weeks’ qualifying service at the time they receive official notification) adopters are required to give this information within 28 days of receiving official notification. At this point it is likely that employees can, with the assistance of their adoption agency, estimate roughly when the child will enter Great Britain.

Where employees have obtained official notification before they start a term of employment or before they have completed 26 weeks’ continuous service with an employer they must give their employer notice within 28 days of completing 26 weeks’ employment. Again, at this point it is likely that employees will be able to estimate roughly when the child will enter Great Britain.

Second stage:

In all cases employees must give their employer at least 28 days’ notice of the actual date they want their adoption leave and SAP to start. This notice can be given at the first stage if the date is known.

Employees can change their mind about the date on which they want their leave to start providing they tell their employer at least 28 days in advance of the new date, or as soon as is reasonably practicable.

Third stage (after the child has entered Great Britain):

Employees must tell their employer the date the child entered Great Britain. This notice must be given within 28 days of the child’s date of entry. If the adopter is also claiming SAP they will need to give evidence of the date of entry (see Evidence required for SAP below).

Employees must tell their employer as soon as is reasonably practicable if it becomes know to them that the child will not be entering Great Britain.

Employers must respond to the employee’s notification of the date they wish adoption leave to start within 28 days, confirming the date the adoption leave will end. A model letter which employers can use is available at www.businesslink.gov.uk.

Evidence required for SAP

As well as the information required for leave, to get SAP employees must give their employer the following evidence:

• A copy of the official notification. This must be given to the employer at least 28 days before they wish SAP to start.
• A declaration that they are not also claiming SPP
• Within 28 days of the child entering Great Britain employees must give evidence of the date of entry, such as a plane ticket or copies of entry clearance documents. The employer should keep a copy for their records.

How to work out entitlement to SAP

The amounts of SAP and arrangements for paying are the same as those which apply when employees adopt a child from within the UK. Employers should refer to the HMRC Helpbook E16 (Supplement) ’Pay and time off work for adoptive parents – Special cases’, available from www.hmrc.gov.uk/employers/employee_adopting_supp.htm or call 08457 646 646 which explains what they have to do to work out if the employee is eligible for SAP and how much to pay and when.

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Entitlement to SAP when employment ends

Where an employee has qualified for adoption leave and pay with an employer but the employment ends before the leave and pay period has begun the employer will continue to be liable to pay SAP to the employee if the child being adopted enters Great Britainwithin 26 weeks of the end of the employment. The adopter should give at least 28 days’ notice of when they want their SAP to begin.

If the SAP period has not begun within 26 weeks of the employment ending then liability to pay SAP passes to HM Revenue and Customs. The adopter should contact their local HMRC office. Check the phone book for contact details.

If the adopter completes 26 weeks’ service with a new employer before the child enters Great Britainthen they will qualify to be paid SAP by the new employer.

PATERNITY LEAVE AND PAY WHEN A CHILD IS ADOPTED FROM OVERSEAS

Eligibility for paternity leave

To qualify for paternity leave when a child is adopted from overseas, employees must:

• Have or expect to have the main responsibility (apart from the other adopter) for the child’s upbringing;
• Be either an adopter of the child, or the spouse, civil partner or partner of the adopter
• Have worked for their employer continuously for at least 26 weeks by the time paternity leave is due to begin and continue to work for the same employer up to the date of the child’s entry into Great Britain;
• Give their employer the correct notification (see Notice for paternity leave below).

When leave and pay can start

Employees may choose to start their leave:

• From the date the child enters Great Britain
• From a fixed date which is later than the date the child enters Great Britain.

Leave must be completed within 56 days of the date the child enters Great Britain. The leave can start on any day of the week.

Statutory paternity leave is not meant to be used to cover the period employees spend travelling overseas to arrange the adoption or visiting the child. Employees should talk to their employers about other leave arrangements to cover this period.

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Notice for paternity leave when a child is adopted from overseas

There are three stages for giving notice of paternity leave when a child is being adopted from overseas. Employees must give the information required in writing if the employer requests it. If they are also entitled to SPP they must also give the evidence required (see Evidence required for SAP below).

First stage:

Employees must inform their employer of:

• The date on which the adopter received official notification; and
• The date the child is expected to enter Great Britain.

In most cases (where they have the necessary 26 weeks’ qualifying service at the time they receive official notification) employees are required to give this information within 28 days of the adopter receiving official notification. At this point it is likely that employees can, with the assistance of the adoption agency, estimate roughly when the child will enter Great Britain.

Where employees have obtained official notification before they start a term of employment or before they have completed 26 weeks’ continuous service with an employer they must give their employer notice within 28 days of completing 26 weeks’ employment. Again, at this point it is likely that employees will be able to estimate roughly when the child will enter Great Britain.

Second stage:

In all cases employees must give their employer at least 28 days’ notice of the actual date they want their paternity leave and SPP to start. This notice can be given at the first stage if the date is known.

Employees can change their mind about the date on which they want their leave to start providing they tell their employer at least 28 days in advance of the new date, or as soon as is reasonably practicable.

Third stage (after the child has entered Great Britain):

Employees must tell their employer the date the child entered Great Britain. This notice must be given within 28 days of the child’s date of entry.

Employees must tell their employer as soon as is reasonably practicable if it becomes know to them that the child will not be entering Great Britain.

Evidence required for SPP

As well as the information required for leave, to get SPP employees must give the following declarations to their employer:

• That they are married to or the partner or civil partner of the child’s adopter
• That they are taking leave to care for the child or to support the adopter
• That the adopter has received official notification of their suitability to adopt a child;
• That they have or expect to have main responsibility for the child (apart from the adopter’s responsibility) for the upbringing of the child;
• That they have chosen to claim SPP and not SAP.

Employee can use a self-certificate, SC5 Statutory Paternity Pay and paternity leave when adopting a child from abroad to supply this declaration. The employer should accept this declaration at face value unless they have very strong reasons for suspecting that it is false.

How to work out entitlement to SPP

The amounts of SPP and arrangements for paying are the same as those which apply when employees adopt a child from within the UK. Employers should refer to the HMRC Helpbook E16 (Supplement) ’Pay and time off work for adoptive parents – Special cases’ , available from www.hmrc.gov.uk/employers/employee_adopting_supp.htm or call 08457 646 646 which explains what they have to do to work out if the employee is eligible for SPP and how much to pay and when.

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