Work and Families Bill

My Lords, I thank the noble Lord, Lord Northbourne, for bringing this issue back before us. I hope that the correspondence that ensued between Grand Committee and today was helpful to him. I also thank other noble Lords who have spoken. As I outlined during Grand Committee and Second Reading, existing paternity provisions require that, for a father to qualify for paternity leave, which will now be known as ordinary paternity leave, he must—in the case of the birth of a child, rather than an adoption—be the father of the child, or be married to or be the partner including civil partner of the child’s mother, and be responsible for the upbringing of the child. That definition was consulted on prior to the introduction of paternity leave in 2003, and was accepted as a reasonable definition that encompassed a wide range of fathers who would be supporting the mother or caring for the child after the birth of the child. The definition clearly outlines who could be eligible and has been accepted as a reasonable and widely understood relationship criterion. When claiming statutory paternity pay, a father must complete a signed declaration that he is taking time off work to care for the child and support the mother or both, that he has or expects to have responsibility for the upbringing of the child, and that he is the father of the child and/or the husband or partner of the mother. It has been, and still is, our intention to adopt the same relationship criteria for fathers to be able to take additional paternity leave—subject to other qualification criteria—as we believe that these are the right criteria and we have no evidence to prove otherwise. We do not want to upset the proverbial apple cart by adopting different criteria from those applied to existing paternity leave, and we do not believe that changing existing paternity leave criteria would be the best approach to keeping things straightforward for employers as well as employees. We have no evidence that the existing criteria cause significant problems. We want to help both employees and their employers to understand who is eligible and keep the scheme as straightforward as possible. Having the same definition for the additional paternity leave scheme would achieve this. We set out our intention to adopt the same relationship criteria in our consultation published on 8 March. We will analyse the responses fully and see if there is any valid objection to us adopting this criteria. The consultation closes on 31 May, so we have a little way to go. The amendment would require a father to have acquired parental responsibility or to have made some other form of commitment to care for and support the child on a continuing and long-term basis in order to be eligible to take additional paternity leave and pay. If the father has his name on the birth certificate, he automatically gets parental responsibility. If not, he can reregister the birth as long as he is the natural father. Other ways to obtain parental responsibility are to marry the mother of the child, obtain a parental responsibility order from the court, or register with the court for parental responsibility. Parental responsibility could be time-consuming to obtain, especially if the person is not the biological father. For civil partners and step-parents, the procedure would involve either agreement between the step-parent and the child’s parents or court proceedings to obtain parental responsibility. Court proceedings could take additional time and may not be completed before the point at which the parent would like to start his additional paternity leave, which may be as early as 20 weeks after the birth of the child. The amendment suggests a second way in which a father could qualify—if he makes a commitment to care for and support the child on a continuing and long-term basis. How this commitment would be made is unclear from the amendment and it is difficult to see how it could be any firmer than the implied commitment under the existing definition that I outlined earlier. To require a person to go through this process of obtaining parental responsibility or in some other way confirming a commitment before being able to take paternity leave and pay would, I suggest, be onerous and would impact on the number of people eligible to take this leave and pay, and could reduce the number of people taking up this provision. While we agree that it is important for a child to have continuous care beyond the first year of its life where possible, we also have to be realistic about the changes that can occur over time—the break-up of relationships, or change of partner, to name but a couple of circumstances. Additional paternity leave and pay is intended to allow fathers an opportunity to care for a child where they are responsible for that child’s upbringing, so it should be available to the most appropriate person. I envisage that in the majority of circumstances the person claiming ordinary paternity leave would be committed to long-term responsibilities, as was thought at the time of its introduction in 2003. Therefore, if the same definition is adopted, we consider that the person claiming additional paternity leave and pay would, in the majority of cases, also intend to care for and support the child on a long-term basis. We would clearly want to see and support that. The existing definition of a father is included in regulations rather than in primary legislation for ordinary paternity leave, and we intend to follow this approach for the eligibility criteria for additional paternity leave. We will develop secondary legislation once the detail of the policy is finalised, following further consultation and consideration. These regulations will be the subject of consultation and will be made by the affirmative procedure. We therefore have the time to ensure that this issue is discussed fully as the policy develops and is reviewed. We want to make sure that we get this scheme right and I can assure noble Lords that this issue will be considered fully. In conclusion, we understand the thrust of the point made by the noble Lord. However, we hope that he will take the point that parental responsibility issues are not necessarily straightforward and can in certain circumstances be time-consuming. If that were the key criteria, that could preclude, within the timeframes necessary for these provisions, certain fathers having the opportunity of participating in these arrangements. It is certainly important that we align the definition so that ordinary paternity leave and pay are matched with the additional paternity leave, otherwise it will be a minefield. I am sure that all noble Lords would accept that. The consultation has not yet finished so we will have to await its final outcome, but we think that to proceed, as the noble Lord suggests, in terms of enshrining this in primary legislation is not the right way forward, for the reasons that I have outlined.