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Adoption Leave

Volume 229: debated on Tuesday 27 July 1993

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10.15 am

I am delighted to have the opportunity before I take my bucket and spade to the seaside to raise a matter on the Adjournment which concerns me and several of my constituents.

I introduced a ten-minute Bill earlier in the Session for which I was privileged to have cross-party support, and I should like to follow up some of the general points that I made then. I welcome my hon. Friend the Parliamentary Under-Secretary of State for Employment to the Front Bench. I am delighted that she is in the House to listen to the debate and I hope that when she replies she will indicate that she has an open mind on the subject.

Adopting mothers do not have in law the right to return to work or to maternity leave. We need to pay attention to this group because this small section of the population has dropped through the net. In many respects, they have a raw deal.

I want to highlight a specific problem relating to two constituents, Dr. Estelle McAndrew and her husband Graham Anderson. Dr. McAndrew met her husband in Dundee in 1983 and went on to qualify as a general practitioner in 1985. He became an interior designer and they married in September 1988. They now live in my constituency. Both want a family but, sadly, no happy event has been forthcoming. As a doctor, Estelle McAndrew realised that all was not right. After many tests the only diagnosis was unexplained infertility. The couple decided to try gamete intra-Fallopian transfer, which is similar to in vitro fertilisation, but it has not worked. It is fair to say that only a miracle could give them the child or the children that they want—a miracle or adoption.

Armed with that thought, in June last year they decided to attend an open day for couples interested in being considered for adopting a child. They were fortunate, as Dr. McAndrew acknowledged, to be chosen to start the assessment procedure in August. By November, they had been approved by the panel as suitable potential parents. I am sure, Mr. Deputy Speaker, that you can imagine their great joy at receiving this news and their great disappointment at what has transpired since.

Dr. McAndrew is a GP at the Cowley community surgery in Uxbridge. On hearing that she and her husband had been accepted for the adoption process, her senior partner, Dr. Haydn Daily, duly approached the Hillingdon family health services authority to obtain locum payments. Yesterday, I telephoned the FHSA warning it that I was raising the matter on the Adjournment, but I have not received any response. Locum payments are put towards the cost of another doctor when, for example, a GP is on pregnancy leave. Dr. Daily wished to cover Dr. McAndrew's absence when a baby was eventually located for the couple to adopt. The FHSA rejected the application. In February, Dr. McAndrew appealed to the family health services appeals unit, but to date no decision has been forthcoming.

Since discovering that she did not qualify for the same treatment as a doctor giving birth, Dr. McAndrew decided to consult other interested bodies. She has received the support of the general medical services committee of the British Medical Association and the Medical and Dental Defence Union of Scotland. The BMA supports the view that payments should be made to women GPs who take time off for adopting a child and who employ a locum during that time. That would bring them in line with the regulations concerning confinement and even those concerning sickness.

The BMA has put forward recommendations to the Department of Health that an appropriate amendment be made to the regulations, in this case the statement of fees and allowances. However, the Department rejected that view, which seems hard to understand, particularly in the light of the successful Opportunity 2000 scheme, which is benefiting women throughout the country. With one hand we seem to be giving opportunities to women and with the other we seem to be taking them away.

The Whitley councils for the health services have also been in correspondence with my constituent. Special leave for adopting a child is covered in section 12 of the General Whitley Council handbook, but when they contacted Hillingdon FHSA they received the same reply—that the decision not to grant payment during adoption leave was based on the absence of any such provision in the FHSA. Hospital doctors, trainees and nurses can all get cover and leave for adoption under those rules, but the provisions do not apply to GPs. My constituent would be better off in that respect if she were a hospital doctor, which is hardly an incentive for women to become GPs. At the same time, however, she was hearing that other FHSAs were using their discretion and giving leave and locum cover to GPs who were adopting children.

I took the matter up with the Department of Health and received a reply that does not satisfy me that we are taking the right approach. And it certainly does not satisfy my constituent. After all, she is asking only to be treated in the same way as if she were sick or pregnant. According to the Minister, maternity locum allowances to pregnant doctors were introduced to reflect the fact that there were clear physical and medical reasons why a woman GP should be absent from the practice around the time of confinement. They were also to see the baby through the perinatal period until it became stabilised in feeding and general care. The Minister went on to say that GPs were independent self-employed contractors and, therefore, did not receive separate payment in respect of absence from the practice, except during sickness and confinement.

That response does not go far enough and the reasons given are not the only ones for not allowing locum cover during confinement. The real reasons may be based on the needs of different parents, which is something we constantly hear about in connection with every other aspect of the health service except, conveniently, this one. I would suggest that sickness and maternity locum cover are also granted to help maintain the standard of health care given to patients of the practice, who may otherwise have less time spent on them if the other partners in the practice were forced to shoulder the case load while their female partner was absent. Perhaps it is also to ensure that general practice is an attractive career for women, with the same conditions as any other medical career. Surely it is obvious that one of the main reasons is to assist in the continued provision of the service to patients. But women practitioners are covered only when sick or biologically pregnant, not when they adopt. When they adopt, the FHSA regulations leave them on their own.

Dr. McAndrew and her husband have been approved to adopt a new baby or a small toddler whose needs will be indistinguishable from those of any other child of that age. Their needs as parents will be indistinguishable from those of any other new parents. If anything, they may be marginally greater, as there is no nine-month period in which to get used to having a baby in the family. Although Dr. McAndrew may not be breast-feeding, she will certainly find herself up during the night having to perform the same tasks that she would had she given birth to the baby. The family will have to get used to their new responsibilities extremely quickly. A baby for adoption may arrive at short notice.

Even if Dr. McAndrew wanted to return to work within a short period, that might not be possible as the adoption prerequisites often insist that the mother remains with the child full time until the adoption is approved. It does not take long to work out that giving that commitment may cause problems with the adoptive mother's job.

Thus, the choice comes down to either adopting a child or keeping a job, which appears to be the choice that we are giving Dr. McAndrew and many other potential adopters. Can it be right? Let us consider the matter coldly and dispassionately. The child would be the state's responsibility unless adopted and would have to be looked after at the state's expense. Just when the state is relieving itself of a financial burden, it is potentially robbing the citizen who is providing the saving of the wherewithal to do so. That is not prudent or sensible.

Also to be considered within the cost equation is the investment that has already been made in training the individual—in this case, a doctor. A large proportion of that cost has already been borne by the state, which is potentially discouraging the individual from utilising her expensively attained skills. If she chooses adoption rather than adoption and career—if that is possible—the state will lose.

The problem does not concern a large section of the population. A relatively small number of adoptions take place every year and, of those, only a handful are of babies or small toddlers. However, it is about time that we removed the uncertainty and extended the protection that the law gives to pregnant workers to adopting mothers by providing similar parameters.

I introduced a ten-minute Bill on adoption leave arrangements earlier in this Session and was pleased to have cross-party support. This is not a political but a common sense issue. A small section of our society has been missed out from protection and legislation. To consider the full implications we would need accurate statistics and, although both Barnardos and the British Agencies for Fostering and Adoption have helped me, I cannot get accurate statistics. The headline topic on adoption at present is the seemingly racially correct attitude of social workers to mixed-race adoption. That issue and the one that I have raised have highlighted the difficulty in obtaining accurate statistics on adoption since the Adoption Unit returns were abolished. We would have more accurate information if the Department still compiled statistics. We could then see how many children were being placed with inter-racial families and how many babies or toddlers were being adopted by working mothers. Although some information is available from local authorities and the agencies that I mentioned, the picture is not complete. It is another area which requires re-evaluation so that the extent of the financial implications can be accurately assessed.

There are many other issues on adoption, not least the prerequisites for terms and conditions of employers. For example, parents seeking to go on the adoption register must often approach their employers and ask what terms and conditions they would be given, were they accepted on the register. That often causes much strain between employer and employee. If the employee is subsequently not put on the register, it can cause difficulties in the workplace for the potential adopting parent. Those issues need to be sorted out, but today I have brought the matter to the House's attention for Dr. Estelle McAndrew and her husband. I hope that my hon. Friend the Minister can assure them of a satisfactory outcome to the deliberations on adoption and that she can ensure that the issue is covered in the forthcoming White Paper. I also hope that my hon. Friend will send a firm message to her colleagues in the Department of Health that locum cover should not be hit and miss. It should not be a question of one FHSA in one part of the country allowing the locum cover and another FHSA not allowing the cover. We want that cover to be extended to all GPs.

I am not asking for complex legislation; I am asking merely for guidelines to level the playing field. Dr. McAndrew certainly seeks such assurances. As she told me yesterday on the telephone, she and her husband would like eventually to adopt up to three children, perhaps even a small family unit. We do not want any more barriers to be put in her and her husband's way.

In a recent letter, my hon. Friend the Secretary of State for Health said that GPs were "the cornerstone" of the NHS. Surely adoptive parents are the cornerstone of family life—a family and an opportunity that adopted children would not otherwise have. Dr. Estelle McAndrew is both a GP and a potential adoptive mother. Can we ensure that she gets a fair deal?

10.30 am

I first congratulate my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) on securing this Adjournment debate on adoption leave. As she said, she made this matter the subject of a recent ten-minute Bill and before that she tabled an unsuccessful amendment during the Committee stage of the Trade Union Reform and Employment Rights Act 1993. She therefore has an extremely honourable record of trying to raise the issue successfully. She regards the issue as being of great importance both to her constituents and in general. I am afraid that I shall not be able to give her the categorical assurances of change that she seeks this morning. Nevertheless, the sheer determination and persistence with which she has addressed the subject will convince her constituents that they have an extremely worthy representative in my hon. Friend.

I should apologise to my hon. Friend for being perhaps the wrong Minister to answer the debate. She has chosen to make the thrust of her debate the question of locum payments to GPs. Adoption, adoption prerequisites, the rights of those who are about to adopt, GP contracts, locum arrangements and FHSAs are all the responsibility of my right hon. Friend the Secretary of State for Health. However, I can give my hon. Friend an undertaking that I shall draw to the attention of my colleagues in the Department of Health the issues that she has raised today, including the specific issue of the White Paper and whether the matter might be addressed within those confines. I cannot anticipate my right hon. Friend's reply, but I can ensure that she is made aware of the many important issues raised in the debate. The reason why I am replying to the debate, perhaps to my hon. Friend's dissatisfaction, is that the issue of rights for adoptive parents goes well beyond the self-employed and GPs. If we agreed that any changes were necessary, they would be the responsibility of the Department of Employment and that is why I am answering the debate today.

Before I embark on the substance of my reply to my hon. Friend, I extend my congratulations to her constituent on being approved for adoption, and I wish her well in her desire to adopt up to three children. My hon. Friend referred to a miracle as being the only way in which her constituent could enjoy motherhood rather than rough adoption. I sincerely hope that that miracle takes place and that she will have that joy as well as the joy of adoption.

I now turn to the general issues raised so eloquently by my hon. Friend. My predecessor, the hon. Member for Derbyshire, West (Mr. McLoughlin), replied to the debate in Committee to which I referred earlier. He explained that the Government did not consider that adoption leave was an appropriate matter for legislation. We remain of that view despite my hon. Friend's eloquent pleading to the contrary.

The Government believe strongly in the need to recognise the contribution of working women and to assist those who wish to combine a career with family responsibilities. We committed ourselves in our election manifesto to taking action to enhance maternity rights and we have, of course, fulfilled that commitment. As hon. Members know, the Government introduced in the Trade Union Reform and Employment Rights Act 1993 provisions that will significantly extend and improve the already substantial package of maternity rights that women enjoy.

The Act gives all natural mothers, regardless of their length of service or hours of work, a new right to a minimum of 14 weeks of statutory maternity leave during which all their non-wage contractual benefits will have to be maintained. It gives them comprehensive new protection against dismissal on maternity-related grounds and new rights in relation to suspension from work on maternity-related health and safety grounds. Furthermore, a much longer period of absence remains available to the 62 per cent. of working women who meet the qualifying conditions: two years of service working 16 hours per week or five years of service working between eight and 16 hours a week. They will continue to be entitled to return to work after a maternity absence lasting up to 29 weeks after the week of childbirth. Those are important new provisions which will be a real help to many women who wish to combine a career with family responsibilities.

As always, there is a balance to be struck between increasing the rights of employees and placing extra burdens on business. We are convinced that the provisions of the new Act correctly strike that balance. To add further to employers' costs by making additional improvements in maternity entitlement or, as my hon. Friend suggests, extending it to a category of mothers who do not at present qualify at all would be going too far. If employers are overburdened by regulation, they will find it more difficult to recruit and to retain staff, and job opportunities will be lost.

Can my hon. Friend tell me whether any statistics have been compiled about how many women fall into that category? I believe that we are talking about a very small number of women. It is probably negligible rather than oversized, which is the impression being given.

I hope that I did not give the impression that we are talking about an oversized number. I shall turn later to the statistics that my hon. Friend requires. I especially wish to address then not only the issue of the number of adoptive parents but, perhaps more importantly, the number of those who adopt within the period with which my hon. Friend is concerned—during the adoptive child's babyhood.

The Government's reasons for opposing the extension of statutory maternity entitlement to adoptive mothers do not, however, rest solely on the extra burdens that such a change would impose on employers. Even if my hon. Friend's question was answered entirely to her satisfaction and it were proved that this category is very small, we are satisfied that legislation on the matter would, for other reasons, be quite inappropriate.

I of course recognise that adoptive mothers can sometimes face difficulties in combining work and family responsibilities, just as is the case with natural mothers. My hon. Friend described that eloquently, and I am sure that all of us recognise in our imaginations the picture that she painted of the burdens on new mothers, be they natural or adoptive. To that extent, I sympathise with my hon. Friend's motives in raising this issue, and with the problems to which she referred in her speech. I can assure her that the Government have given careful consideration to the suggestions that have been made from time to time regarding the introduction of statutory leave and other rights for adoptive mothers. During her short time in the House, my hon. Friend has on several occasions succeeded in concentrating our minds on that issue.

We have concluded, however, that the sort of considerations that have framed provision for natural mothers simply do not apply to the same extent in relation to adoptions. The purpose of the statutory maternity provision is to safeguard the mother's career while allowing her a period in which to prepare for and recover from childbirth and to nurse and care for the baby in the early stages of its life. In the case of adoptions, there is, by contrast, no question of the mother having to prepare for or physically recover from childbirth. Furthermore, in most cases, adoption does not entail looking after a baby in the early stages of its life. Only about 15 per cent. of adoptions in England and Wales are of children under one year of age. Adoptions can and do occur up to the age of 18, sometimes after a period of long-term fostering. It is not therefore possible to draw a direct parallel between the position of natural mothers and that of adoptive mothers.

Natural mothers who wish to return to work have a clear timescale in which to operate and can give their employers reasonable notice of their intentions. That allows the employer to make adequate arrangements for temporary cover and so on. Again, that is not the case with adoptions, as the timescale for adoption can be extremely uncertain. Sometimes, the child is placed with its adoptive parents at extremely short notice, and the timing of any court hearings can also be difficult to predict. Those factors would create significant administrative problems for employers in addition to the burdens to which I have already referred.

My hon. Friend drew attention to the fact that natural mothers have nine months in which to prepare for the forthcoming arrival of a child in their home. By the same token, the mother has nine months in which to come to arrangements with her employer. That does not apply to adoptive mothers. Moreover, it would probably be impossible from the point of view of drafting simply to extend the existing maternity provisions to adoptive mothers. The timing of the statutory maternity leave period, for example, is linked to the expected week of childbirth and—bearing in mind the uncertainties to which I have just referred—it would be no easy matter to modify the legislation so as to adapt it to the very different circumstances that apply to adoption.

Correctly drafted provisions taking account of all the various conceivable differences between the situation of natural mothers and that of adoptive mothers would inevitably be extremely lengthy and highly complex. Such legislative complexity would not, in the Government's view, be justifiable, particularly in view of the relatively small number of cases involved. Fewer than 1,000 babies under a year old are adopted each year. Bearing in mind the smallness of that number and the complex and lengthy administrative process that I have described, it is the Government's view that this matter is best resolved through individual agreements rather than statutory provision.

For those reasons, we remain firmly of the view that legislation is not the answer in this case, but we hope that employers whose circumstances permit them will view sympathetically requests for leave in such circumstances and we welcome such action by employers. The Government are considering guidance to companies and individuals on leave for adoptive parents. That might include guidance to help people understand their existing rights, as well as examples of good practice by employers. However, the best method of issuing such guidance—and, indeed, the nature of the guidance itself—has yet to be resolved.

My hon. Friend concentrated most of her remarks on the difficulty experienced by her constituent, Dr. Estelle McAndrew. General practitioners are independent contractors for the provision of general medical services. Matters concerning them are therefore matters for my hon. Friend the Parliamentary Under-Secretary of State for Health, as I said at the beginning of my reply. However, as self-employed professionals, GPs are responsible for their own maternity leave arrangements including arrangements in circumstances where they are adopting children. It is, of course, the case that current maternity rights, like other employment rights contained in the Employment Protection (Consolidation) Act 1978, apply only to employees and not to individuals who are self-employed.

I should not like hon. Members to gain the incorrect impression that adoptive mothers—or, indeed, fathers, who have been largely ignored today—who are employees have no rights whatever under the employment protection legislation. On the contrary, they benefit from the same comprehensive framework of statutory employment protection rights as other employees. If an adoptive parent is unreasonably dismissed—for taking time off, for example—he or she may have grounds for a complaint of unfair dismissal. That would be subject to the usual qualifying criteria. The industrial tribunal would then decide whether the dismissal was in fact unfair in all the circumstances of the case.

In addition, if there is a contractual right to take time off and the employer refuses it, the employee may be able to sue for breach of contract in the civil courts. He or she may also be justified in resigning and then making a complaint of constructive unfair dismissal to an industrial tribunal—subject again to the usual qualifying criteria. As in the previous case, it would be for the tribunal to decide the case on the basis of all the relevant facts. If an employer denies an adoptive father time off when he would have given such time off to an adoptive mother—or vice versa—that employee is entitled to make a complaint of sex discrimination to an industrial tribunal, irrespective of length of service or hours of work.

In general, however, terms and conditions of employment are quite properly matters for agreement between employers and employees or their representatives without Government intervention. Matters such as adoption leave are most appropriately dealt with in that way—on a voluntary basis rather than by complex and unnecessarily burdensome legislation. The framework of statutory rights to which I have just referred provides a minimum level of protection on which the parties concerned are free to build in a flexible way, making arrangements that best suit their organisation and best accord with their own priorities, needs and circumstances and with what can be afforded. That of course includes what best fits the needs of individual employees.

I am confident that employers will in general view sympathetically the position of adoptive parents and will be willing to accord them any help that they can, consistent with the needs of their business. In our view, that approach, and not the imposition of further bureaucratic regulation, represents the best way forward.

In view of the constituency case that my hon. Friend has raised, it would perhaps be worth considering in more detail the arrangements that exist for GPs' pay in the case of mothers claiming for periods of confinement. As I have said, general practitioners are independent, self-employed professionals. They contract with the NHS for the provision of general medical services, and the payment basis of that contract is cost plus, by which their expenses will be reimbursed and they will receive a net income in addition. Expenses and income are reimbursed through a wide range of fees and allowances, and certain expenses are directly reimbursed.

As self-employed professionals, general practitioners are responsible for their maternity leave arrangements, including the employment of a locum to cover their absence, if necessary. In certain circumstances payments may be made in addition to the main range of fees, allowances and the reimbursement of expenses, which assist in part with the cost of a locum. One set of payments is for absence during confinement. Those are available to a doctor who remains on the medical list, held by the family health services authority, and intends to continue in general practice. The intention to return to practise within a reasonable time after the birth must be signalled by the practitioner when making the claim.

The payments, for a maximum period of 13 weeks, are intended to reimburse the general practitioner in part for the cost of a locum or other deputy from outside the practice who has had to be engaged to look after the patients. From April 1993, payment can be made by the family health services authority up to a maximum of £393·50 per week. If the GP is absent due to illness before or after the maximum maternity payment of 13 weeks, other additional payments for sickness can be paid instead. All women practitioners who provide unrestricted general medical services and who receive a basic practice allowance are eligible. Payments to part-time practitioners or job sharers are modified according to the amount of time worked. There is no provision for additional payments to be made if a GP takes leave at the time of an adoption.

As I said earlier in respect of employment law, maternity locum allowances are paid to reflect physical and medical need for absence. The payment of locum allowances to adopting GPs was recently discussed with the general medical services committee of the British Medical Association.

My hon. Friend the Member for Chesham and Amersham drew our attention to representations on adoption that we have received from different parts of the medical profession. The consideration of those representations, any action that we can or cannot take in response, and any view that we may form as to their validity are matters for my right hon. Friend the Secretary of State for Health. I cannot become engaged in a discussion of the exercise of discretion by family health services authorities or of the detailed arrangements for locum absences. I am interested in my hon. Friend's statement, in that some discretion can be exercised under existing rules. I am sure that my colleagues in the Department of Health will also be interested, and may wish to consider that representation further.

I welcome my hon. Friend's words about Opportunity 2000. The Government have given their full support to that business-led campaign to increase the quality and quantity of women's participation in the labour force. The Prime Minister launched the initiative in October 1991 and has committed the Government, as an employer, to full participation in it.

My hon. Friend mentioned opportunities for women as GPs. The NHS, which is the largest employer of women in Europe, has set goals to increase the number of women managers, women accountants, women consultants, women members of health authorities and women members of NHS trust boards. Targets have been set for achievement by 1994—only a year away—as first milestones for the year 2000. Progress reports are included in the annual reports that health authorities and trusts submit to NHS management executives.

I am very pleased to hear what my hon. Friend says about the health service. Does she agree that, as it is potentially the largest employer of women in Europe, it is essential that clear guidelines are set out for the adoption of children?

My hon. Friend mentions an important point. At the risk of being repetitious and boring, I have to tell her that that is a matter for my hon. Friend the Under-Secretary of State for Health and that I will ensure that he is fully cognisant of the contents of the debate. I am sure that I will not have to do much to ensure that, as he will take an interest anyway. All the points that my hon. Friend has mentioned in her impressive speech and in her interventions will be considered by my right hon. and hon. Friends in the Department. I have become so interested as a result of my hon. Friend's eloquence that I should be most interested to see the outcome of whatever correspondence results from the debate.

As I would not like it to be thought that no rights exist for adoptive parents, let me remind the House what those rights are in more detail. There is no statutory right to time off for family reasons. I am sure that my hon. Friend will agree that one can think of a range of family circumstances, other than maternity and adoption, which would merit a compassionate and reasonable attitude from any sensible employer, but that is different from endeavouring to tie up those rights in statute. There is no statutory right to time off for a range of family reasons, of which adoption is one.

I received the impression today that it might seem that we were picking on adoption for exclusion from rights, but that is not so. Time off for family reasons remains a matter for employees to agree with their employers, in the light of the circumstances, and they will vary. There will be a difference between adoptive parents who are about to welcome a new-born child into the family—alas, very few have that pleasure in today's circumstances—and those who are about to welcome an older child who already has some skills in independent management. Many employers treat those circumstances and applications with the right amount of sympathy, and I hope that such guidance as may eventually be issued will enhance such a sympathetic attitude.

Adoptive parents who are unreasonably dismissed for taking time off have full rights before industrial tribunals, provided that they qualify through their length of service, as I detailed earlier. Those parents who have a contractual right to leave would be able to enforce it, as they would any other contractual right, and would be able to do so through the civil courts if necessary. An employer who denied an adoptive father or mother time off would have to show reasonable cause if that was followed by dismissal.

Finally, although my hon. Friend did not mention this, the problem would appear to be Europe-wide, for there is no European standard of provision. No common statutory pattern has been established in the rest of the European Community. If it were as straightforward as my hon. Friend implied, other countries would have full arrangements. A number of member states have some statutory arrangements for adoption leave, but they vary immensely in their range and scope. Other countries, like the United Kingdom, have decided that that can be determined only by the parties concerned in the light of their circumstances.

In summary, I congratulate my hon. Friend's constituent on acquiring a child. I sympathise with the difficulties that have arisen as a result of her self-employed status. We will examine the matter sympathetically. However, we remain of the view that statutory provision would be lengthy and complex for what my hon. Friend has rightly described as an extremely small number of cases, especially those involving new-born babies. For those reasons, I must resist my hon. Friend's recommendations.