Adoption, surrogacy and fostering to adopt
Employee adoption eligibility
- adopter - the person with whom an adoption agency has placed, or will place, a child. They will be the 'primary' adopter who is eligible for statutory provisions
- beginning of the week - refers to a Sunday
- placement date - the date which the child is placed for adoption
- qualifying week - the week during which the agency tells the adopter that they are matched with a child for adoption. This starts on a Sunday
- adoption from overseas - the adoption of a child from abroad that does not involve placing the child up for adoption under UK law
- surrogacy - when another woman carries and gives birth to a baby for the intended parents. An Adoption or Parental Order can transfer parental responsibility. At least one parent must be genetically related to the child to apply for a Parental Order
Adoption leave and pay are available, subject to eligibility criteria, to:
- employees who have a child through a surrogacy arrangement and are eligible for a Parental Order
- who foster a child through the Foster to Adopt programme as per section 22C of the Children Act 1989
Adoption leave is available to:
- individual employees who adopt
- one member of a couple where a couple jointly adopts
- any employee who is:
- a local authority foster parent
- approved as a prospective adopter
- and, a child is placed with them in a Foster to Adopt situation
- one member of a couple that are the legal parents of a child born through surrogacy
Where a couple is adopting jointly, or have become legal parents via surrogacy, only one may take adoption leave and receive adoption pay. The other, subject to meeting specific eligibility criteria, may be entitled to take one or two weeks' paid Paternity Leave.
Adoption leave and pay are not available where a child is not newly-matched for adoption. For example, when a step-parent is adopting a partner's children.
Notification
Employees must notify their manager in writing within seven days when:
- they are matched with a child
- or, they intend to take adoption leave
Teachers, NHS staff or employees on other terms and conditions should contact payroll for the forms.
With surrogacy, employees must tell their manager at least 15 weeks before the child is due, that they intend to take adoption leave.
Employees will need to give their manager:
- the date that they intend to start adoption leave
- the expected week of the placement of the child. With surrogacy, the expected week of childbirth
- a matching certificate completed by the adoption agency. With surrogacy, a Parental Order within six months of the start of adoption leave
Employees can choose to start their leave from:
- the date of the child's placement, whether this is earlier or later than expected
- or, from a fixed date, which can be up to 14 days before the expected date of placement
With surrogacy, adoption leave can start the day of the birth or the day after.
If an employee changes their mind about the date on which they intend to start their adoption leave, they should tell their manager. They must give at least 28 days' notice of the revised start date.
The manager will formally respond in writing to an employee's leave plans within 28 days. They will confirm the date on which the employee is expected to return to work.
The date of the adoption placement or, with surrogacy, the expected week of childbirth changes, employees must:
- tell their manager
- give appropriate notice for the change in date
Some employees may plan to start adoption leave at any time before the actual date of placement. They must be sure the placement will be going ahead on the date agreed before they start their leave. If the placement is delayed, for whatever reason, and adoption leave has already begun, they cannot stop and start it again at a later date.
Adoption from overseas
Eligible employees adopting a child from overseas must tell management of the date on which:
- they receive special notification
- they expect the child to enter the UK
Employees must:
- give at least 28 days' notice of when they wish their adoption leave to start
- tell their manager about the child's entry in the UK with 28 days, if applicable
Managers can ask for evidence of the official notification and entry of a child into the UK.
Adoption leave arrangements
Ordinary Adoption Leave
All qualifying employees are entitled to:
- 26 weeks' Ordinary Adoption Leave (OAL)
- up to 26 weeks Additional Adoption Leave (AAL)
This is a total of 52 weeks, regardless of the number of hours they work or their length of service.
To qualify for OAL leave, employees must:
- have an approved adoption agency match them with a child
- or, be one of a couple that has been jointly matched with a child for adoption
- tell the adoption agency that they agree to have the child placed with them and on the date of placement
- or, be the legal parent of a child born via surrogacy
Adoption leave is available to:
- one member of a couple that has had a child placed with them for adoption
- the legal parents of a child born via surrogacy
It is up to the adoptive or legal parents to decide which of them takes the adoption leave. The other partner may, however, be entitled to a period of paid paternity leave.
During adoption leave, employees retain the right to their contractual benefits. However, employees are not entitled to remuneration unless they meet the qualifying conditions for adoption payments. Employees returning to work after OAL can return to the same job they had before.
Additional adoption leave
Employees who qualify for OAL are also entitled to Additional Adoption Leave (AAL). AAL starts immediately after OAL and continues for a further period of up to 26 weeks. This brings the total period of absence allowed up to 52 weeks.
Employees returning to work after AAL are entitled to return to the same job. If this is not reasonably practicable for a reason other than redundancy, they are entitled to return to a suitable position. Their terms and conditions will be no less favourable than those they were employed on before AAL.
Only one period of leave will be available, even if:
- more than one child is placed for adoption as part of the same arrangement
- with surrogacy, more than one child is born
Sometimes, the child's adoption placement may end during the adoption leave period. In this case, employees may continue their adoption leave for up to eight weeks after the end of the placement.
Sometimes, an expected adoption placement does not happen, but employees have already started the leave or pay period. In this case, adoption leave and pay will be available for eight weeks after notification that the child will not be placed.
Adoption pay entitlement
Statutory Adoption Pay
Statutory Adoption Pay (SAP) is payable for up to 39 weeks during adoption leave. An employee is entitled to SAP if they:
- have been employed by us for a continuous period of 26 weeks by the end of the week in which they are matched with a child. With surrogacy, this is the end of the week in which they are told of the pregnancy
- have national weekly earnings of over the lower limit of National Insurance contributions
- have been matched with a child to be placed with them by a UK adoption agency
- have told the adoption agency that they agree to have the child placed with them and on the date of placement
- tell their manager within seven days of the date they are matched with the child
- provide a matching certificate completed by the adoption agency. With surrogacy, provide a copy of the Parental Order as soon as possible after the child's birth. This must be no later than six months after the start of adoption leave
SAP is payable for a maximum of 39 weeks. This period is called the 'adoption pay period'. It can begin from 14 days before the child is placed with the adoptive parent but no earlier. SAP is an amount set by the Government each year.
For the first six weeks, SAP is at the higher rate. This is 90 per cent of the employee's average weekly earnings over a specified period. To calculate average weekly earnings, shift allowances and overtime payments, are included.
For the remaining 33 weeks, SAP is at the standard rate, or less if the employee returns to work sooner. It is paid:
- at the rate set by the Government for the relevant tax year
- or, 90 per cent of the employee's average weekly earnings if this is lower than the Government's fixed weekly rate
SAP is treated as earnings and is, therefore, subject to PAYE and National Insurance deductions. Employees who are not entitled to SAP may be entitled to receive an allowance, payable by the Government.
Occupational Adoption Pay
Occupational Adoption Pay (OAP) is an additional payment we make and is more generous than SAP. An employee is entitled to OAP if:
- they have at least 12 months continuous service by the week in which they are told they have been matched with a child
- they give the proper notification of the adoption
- provide a Matching Certificate from the adoption agency or, with surrogacy, a Parental Order
- give at least eight weeks written notice if they wish to change their agreed return date
If entitled to OAP, employees will receive:
- for the first six weeks - 90 per cent of their average weekly earnings offset against any entitlement to SAP
- for the following 12 weeks - half pay. The combination of SAP and half pay is capped at the equivalent of a full week's pay
OAP for teachers
If entitled to OAP, teachers will receive:
- for the first four weeks - full pay offset against SAP or MA payments
- for the following two weeks - 90 per cent of a week's pay offset against SAP or MA payments
- for the following 12 weeks - half pay. This is not offset against SAP, except where the combined pay and benefits exceed full pay. For example, SAP or MA. In this case, a week's full pay will be offset against the SAP or MA payments.
- for the following 21 weeks - the lesser of the standard rate of SAP or 90 per cent of their average weekly earnings
Both SAP and OAP are subject to regular deductions of PAYE tax and National Insurance.
Employees have a choice of payment arrangements. We can make payments:
- during their adoption leave
- or, in a lump sum when they return to work
No further payment is due until the employee resumes work. Employees should tell their manager about their intentions before they start adoption leave. It helps us to make the payment arrangements.
Time off for adoption appointments
Employees who are matched with a child can take paid time off to attend up to five adoption appointments.
Where an employee is part of a couple jointly adopting a child:
- one of them can take paid time off for up to five appointments
- the other can take unpaid time off to attend up to two appointments
Employees must take any time off before the date of the child's placement for adoption.
With surrogacy, employees can take unpaid time off to accompany the surrogate mother to two antenatal appointments.
Returning to work
We will confirm in writing, the date on which we expect an employee to return to work. They must tell their manager if this is not possible.
If, for health reasons, an employee cannot return to work after adoption leave, we will deem them as having returned to work. The usual sickness reporting procedures and policies will apply. We will treat a late return without prior agreement as unauthorised absence.
Employees who intend to return to work at the end of their adoption leave do not need to give any further notification. However, it helps us if they confirm, as soon as convenient, that they will return to work as expected.
If an employee wishes to return to work early, they must give their manager as least eight weeks' notice. If they fail to do so, their manager may postpone their return to a date that gives eight weeks' notice. However, this date cannot be later than the expected return date.
Employees can take annual leave immediately after the end of adoption leave. To do this, they must give their manager at least eight weeks' notice before their original agreed return date.
The notice requirement applies during both ordinary and additional adoption leave. Employees cannot extend adoption leave beyond the maximum 52-week entitlement.