If you are the partner of someone who is adopting, you may be entitled to ordinary paternity leave. If you are adopting jointly with your partner, you have to decide which of you takes paternity leave, and which of you takes adoption leave. You cannot both take adoption leave even if you are both entitled. The rules are slightly different for people adopting from abroad. You will find more information on www.gov.uk.
In order to be eligible for ordinary paternity leave for an adoption you must:
- Be the second adoptive parent in a married couple or civil partnership where the other spouse/civil partner is taking adoption leave or be the partner of the child’s adopter.
- Have been continuously employed for at least 26 weeks ending with the week in which you or the child’s adopter is notified of being matched with the child.
- Have or expect to have responsibility for the upbringing of the child.
If you are not married or in a civil partnership with the person adopting a child, you count as her/his partner if you live with her/him in an enduring family relationship, but you are not a close blood relative. This applies to same sex and opposite sex couples.
You can choose to take one or two consecutive weeks of ordinary paternity leave (not odd days or two separate weeks). Leave can be taken:
- From the date of the child’s placement, whenever that takes place.
- From a chosen number of days after the date of the child’s placement (whenever they are placed with you).
- Or from a chosen date which is on or after the expected date of placement.
Where the adoption leave is in respect of a child in a surrogacy
arrangement, paternity leave can be taken:
- from the date when the child is born (or the day after, if you are at work on the day of the birth)
- from a chosen number of days after the birth
- from a chosen date which is later than the first day of the expected week of birth.
Leave can start on any day of the week but must be completed within 56 days of the child’s placement or birth. There is only one period of leave available even if more than one child is placed.
If you have started paternity leave for an adoption, and the placement does not work out, you are still entitled to your paternity leave and pay. If you have not started your paternity leave when you find out that a child is not going to be placed with you or your partner, then you cannot take any leave or pay.
Most employees who are entitled to ordinary paternity leave will also be entitled to Ordinary Statutory Paternity Pay (OSPP). Some workers who are not entitled to ordinary paternity leave can also be entitled to OSPP if they are an “employed earner” and meet the conditions of entitlement to leave other than being an employee (for example, agency workers). OSPP is paid at a flat rate per week or 90% of average weekly earnings if this is less. If you are paid weekly, average weekly earnings are based on your earnings in the eight weeks ending with the week in which the adopter was notified of the match. If you are paid monthly, it is usually based on the last two pay dates before the end of the week in which notification of the match occurred. However, if your average weekly earnings in this period are less than the lower earnings limit for National Insurance, you will not qualify.
If the adoption leave is in respect of a child in a surrogacy arrangement, your average earnings are worked out as above, but based on your earnings in the 8 weeks up to and including the 15th week before the child is due.
You must also work for the same employer from the end of the week you were notified of being matched with the child to the day the child is placed with you for adoption (or from the 15th week before the child is due to the date it is born).
If your employer decides you are not entitled to OSPP, they should give you a written decision within 28 days of your notice (see below). If they do not give you a decision, or you think the decision is wrong, you can ask HMRC (Her Majesty’s Revenue and Customs) to make a decision for you.
If you are not entitled to OSPP, you may be able to claim Income Support during Ordinary Paternity Leave.
OSPP can be paid for one week or two. You can choose when to be paid. The earliest date it can be paid is the date of the child’s placement for adoption (or birth in a surrogacy arrangement), and the latest is eight weeks afterwards (so you must be paid your OSPP within eight weeks of the placement or 8 weeks of the birth, unless the child is born early when you must be paid within 56 days after the first day of the expected week of birth).
You must inform your employer that you want to take ordinary paternity leave within seven days of the adopter (or joint adopter) being notified by the adoption agency that they have been matched with a child.
You should tell your employer:
- The week the child is to be placed.
- Whether you want to take one or two weeks leave.
- And When you want your leave to start.
For OSPP, it is easiest to give notice at the same time as giving notice for your leave. Technically you can give notice for pay 28 days before you want it to start, unless the placement is due on or after 5 April, when it must be given within 7 days of notification of being matched with the child. If you are late with giving notice, give it as soon as possible and explain why you did not give it any earlier.
Notice for pay should be in writing and should:
- Confirm the date you expect the child to be placed with you.
- State the date the adopter (or joint adopter) was notified of the child being matched with her/him.
- State that you are jointly adopting a child or your partner is adopting a child, and you will have responsibility for bringing up the child with them.
- Whether you want OSPP for one week or two and when you would like it to start.
- State that you will care for the child and/or support the adopter whilst you are getting OSPP.
- State that you have chosen to be paid OSPP rather than SAP (if you are adopting jointly or you have a partner).
Your employer may ask you to use their own form or form SC4, which is provided by HMRC. This can be useful, but you do not have to use a form to give valid notice as long as you give all the information required.
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.