If you are the partner of someone who is adopting, you may be entitled to 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.

In order to be eligible for ordinary paternity leave for an adoption you must:

• Either be the second adoptive parent in a married couple or civil partnership where the other spouse/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 a partner if you live with the person in an enduring family relationship, but you are not a close blood relative. This applies to same sex and opposite sex couples.

When can paternity leave be taken?

You can choose to take one or two consecutive weeks of paternity leave. 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 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.

Statutory Paternity Pay (SPP)

Most employees who are entitled to ordinary paternity leave will also be entitled to Statutory Paternity Pay (SPP) if your average earnings in the eight weeks or two months before you are notified of the match meet the lower earnings limit for National Insurance. 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 the child is born).

Workers who are not entitled to paternity leave can be entitled to SPP if they are an “employed earner” and meet the conditions of entitlement to leave other than being an employee (for example, agency workers).

SPP 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.

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.

If your employer decides you are not entitled to SPP, 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.

SPP 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 SPP 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).

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