To qualify for statutory adoption leave (SAL), an employee must meet certain qualifying criteria. The criteria differ for UK and overseas adoptions and for intended parents of surrogacy arrangements.
Definition of an adopter
An 'adopter' is defined as 'a person who has been matched with a child for adoption'. An employee is 'matched with a child for adoption when an adoption agency decides that that employee would be a suitable adoptive parent for the child, either individually or jointly with another person'. The employee becomes the child's adopter when he or she agrees with the other person that he or she will be the adopter.
An employee qualifies for 52 weeks' SAL when they adopt a child in the UK if they:
- Have been matched with a child to be placed with them by a UK adoption agency. (This may, exceptionally, include cases where an adoption agency places a child with approved foster parents who are also approved prospective adopters. The agency will supply the foster parents with correspondence which can be shown to the employer explaining that they have met the relevant criteria for being matched with the child for the purposes of adoption leave and pay and other entitlements open to adopters. The usual notification and service criteria will apply).
- Have notified the agency that they agree that the child should be placed with them and agree with the date of placement.
- Notify you of when they want to take their SAL no more than seven days after they are notified that they've been matched with a child - see notification and confirmation of adoption leave - UK adoptions.
It does not matter how long the employee has worked for you.
The SAL period is made up of 26 weeks' ordinary adoption leave followed immediately by 26 weeks' additional adoption leave.
In addition, since the introduction of shared parental leave and pay on 5 April 2015, adopters can bring their adoption leave and pay to an early end to opt into shared parental leave and pay with their partner.
Adopters are also entitled to time off to attend pre-adoptions appointments - see statutory time off for parental reasons.
An employee qualifies for 52 weeks' SAL when they adopt a child from overseas if they:
- Have received official notification from the relevant UK authority of their eligibility to adopt a child from abroad.
- Have given you the correct notification - see notification and confirmation of adoption leave - overseas adoptions.
- Are the child's adopter. This is the person who will adopt or has adopted the child or, in a case where the child will be or has been adopted by two people jointly, whichever of the joint adopters has chosen to take statutory adoption leave in respect of the child.
It does not matter how long the employee has worked for you.
Official notification for overseas adoptions
Official notification is written notification issued by or on behalf of the relevant domestic authority stating that the authority either is prepared to issue a certificate to the overseas authority dealing with the adoption of the child, or has issued a certificate and sent it to that authority.
In either case, the certificate confirms that the adopter has been approved by them as being a suitable adoptive parent to adopt a child from overseas.
Again, as with UK adoptions, since 5 April 2015 it does not matter how long the employee has worked for you (the prior requirement for 26 weeks' continuous employment has been removed).
Joint and individual adoptions
Where a couple are adopting jointly, they can choose who will take SAL and who (regardless of gender) will take statutory paternity leave (SPL). They cannot both take SAL or SPL.
If an employee is adopting individually, only they are eligible for SAL - although their partner (regardless of gender) may be eligible for SPL.
Foster parents who adopt a child
A foster parent may be able to take SAL if they go on to adopt a child, but only if:
- The child that the employee fostered is then matched with them for adoption by a UK adoption agency. Adoption via a court order does not count.
- The child is then actually placed with them for adoption.
- The foster parents have not previously availed of adoption leave in respect of the same child in the circumstances described under the heading 'UK Adoptions' above.
The usual notification and service criteria still apply. The adoption leave only relates to the actual placement for adoption - any period of ordinary foster caring does not count.
A special guardian is usually someone with a close relationship to the child, such as a family member, former foster carer or family friend. They need to apply to a court which will consider their suitabililty and the child's needs, based on a report from the local authority.
SAL is not available to special guardians.
An employee who becomes a parent through an arrangement with a surrogate mother is now also entitled to SAL and SAP.
The intended parents in a surrogacy arrangement may be eligible for adoption leave and pay where they intend to apply for, or have already obtained, a Parental Order making them the legal parents of the child. Only couples can apply for a Parental Order and only one of the couple will be able to take adoption leave and/or pay in relation to the child.
The eligibility criteria are:
- they are an employee
- they are one of a couple who has obtained a Parental Order for the child or who have, on the day of the child’s birth, applied for or intend to apply for a such an Order
- the application for the Parental Order must be made within 6 months of the child’s birth and the intended parents must expect the Parental Order to be made
They will also be entitled to the right to request a flexible working arrangement from their employer.
The intended parent who does not take adoption leave and pay may be eligible for paternity leave and pay. Intended parents may also qualify for shared parental leave and pay where the parent who qualifies for adoption leave and pay chooses to return to work before the end of the adoption leave period.
Intended parents are also entitled to unpaid time off to attend ante-natal appointments with the surrogate mother - see statutory time off for parental reasons.
Enhanced adoption leave
You can make enhanced adoption leave arrangements to attract and retain employees.
For example, you could allow employees with more than a year's service to take more than 52 weeks' leave.
You can offer these arrangements either as a contractual right or on a discretionary, case-by-case basis. When exercising discretion, caution should be taken to avoid claims of unfair treatment or discrimination.