NHS Scotland Once for Scotland workforce policies - work-life balance: consultation

10. Adoption, Fostering and Kinship Policy

10.1. Aim

10.1.1. The Adoption, Fostering and Kinship Care Policy aims to:

• outline the procedure eligible employees must use to request adoption leave, and the support available for fostering and kinship care
• provide details about employees' statutory and contractual rights
• confirm adoption pay arrangements

10.2. Scope

10.2.1. This policy applies to all employees who meet the eligibility criteria.

10.2.2. This policy complies with current legislation and meets the aims of the Public Sector Equality Duty of the Equality Act 2010

10.3. Definitions

10.3.1. Adoption is a process whereby an employee applies to become the legal parent of a child.

10.3.2. Employing Board is the employer of an individual who is the subject of a placement agreement.

10.3.3. Fostering is a process whereby an employee applies to become the legal carer of a child, usually for a limited time, but is not the legal parent.

10.3.4. Intended parent or intended parents are employees who cannot or choose not to conceive on their own and use surrogacy or adoption

10.3.5. Keeping in touch (KIT) days help employees on adoption leave:

• keep up to date with any changes at work
• maintain their professional registration where appropriate

10.3.6. KIT days also support employees when returning to the workplace after adoption leave.

10.3.7. A kinship carer is an employee related to the child through blood, marriage, civil partnership, or a person with whom the child has a pre-existing relationship who cares for the child if the child cannot remain with their parent or parents.

10.3.8. Placement Board is the organisation providing a training placement to an individual who is not their employee. A placement agreement must be in place.

10.4. Roles and responsibilities

10.4.1. There is a range of standard expectations which underpin all policies. Read more about standard roles and responsibilities. In addition, the following specific responsibilities apply to this policy.

10.4.2. Manager

10.4.3. The manager should:

• obtain copies of relevant documentation to confirm eligibility
• respond promptly to a notification of leave
• plan for effective team working, including KIT days
• make sure the employee receives regular communication in departmental, organisational, and career opportunities
• action return to work requirements, for example, breastfeeding

10.4.4. Employee

10.4.5. The employee should:

• notify their manager of any placement dates of a child or children
• provide copies of relevant documentation to confirm eligibility
• talk to their manager about their intentions for adoption leave, return to work, and KIT days, as applicable
• maintain their professional registration

10.5. Procedure

10.5.1. Adoption procedure

10.5.2. When an adoption agency confirms a match with a child, the employee should notify their manager:

• before the end of the week they are notified by the adoption agency
• by the 15th week before the baby's due date if it is a surrogacy arrangement

10.5.3. The employee with primary carer responsibilities for the child should confirm their intention to take adoption leave by submitting an Adoption leave form. [form to notify manager of intention to take adoption leave] For details on the information employees should provide to their employer, please read the Employee guide. [guide to help employees use and understand the Adoption, Fostering and Kinship Care Policy]

10.5.4. The employee will receive confirmation of their adoption leave and pay arrangements in writing within 28 days.

10.5.5. The written confirmation will include the employee's:

• paid and unpaid leave entitlements, or statutory entitlements if the employee is not eligible for occupational leave and/or pay
• period of accrued annual leave to be taken at the end of the formal adoption leave period or at a time agreed with their manager
• expected return date, based on 52 weeks of paid and unpaid leave entitlement
• early return date, if requested

10.5.6. The employee should give at least 28 days of notice if they wish to return to work before the expected return date.

10.5.7. There are particular notification provisions if an employee is adopting from overseas. For details, please read:

• Guide for managers [guide to help managers use and understand the Adoption, Fostering and Kinship Care Policy]
• Guide for employees [guide to help employees use and understand the Adoption, Fostering and Kinship Care Policy]

10.5.8. Adoption leave

10.5.9. Adoption leave eligibility

10.5.10. An employee will have the right to 52 weeks of adoption leave if they are:

• the primary carer in an adoption arrangement made by an official adoption agency
• adopting a child from overseas and the adoption has been approved by the relevant UK authority
• the parent through a surrogacy arrangement and committed to applying for a parental or adoption order

10.5.11. If adopting as a couple, only one parent can take adoption leave. The partner may access:

• New Parent Support Policy
• Shared Maternity and Shared Adoption Policy

10.5.12. Adoption leave entitlement

10.5.13. Employees who are eligible will have a right to take 52 weeks of adoption leave whether or not they return to NHS employment.

10.5.14. Pre-adoption leave

10.5.15. Reasonable time off should be given to attend official meetings in the adoption process, such as court sessions and interviews. When an adoption agency confirms the placement of a child for adoption, the employee must advise their manager in writing as soon as possible.

10.5.16. A maximum of 5 working days pro rata is available to allow staff to attend these meetings. Proof of appointment will be required to support requests for leave.

10.5.17. The employee must give their manager advance notice of appointments. They must also try to arrange these meetings outside work hours or at the start or end of the working day. However, employers recognise that this may not always be possible.

10.5.18. KIT days

10.5.19. Before going on adoption leave, the employee and their manager must agree on voluntary arrangements for keeping in touch. It will help the employee to:

• keep up to date with developments at work and facilitate their return to work
• inform their manager of any circumstances that may affect their intended date of return
• maintain their professional registration

10.5.20. Employees can return to work for up to 10 days without bringing their adoption leave or pay to an end. KIT days are optional but help to facilitate a smooth return to work for employees returning from adoption leave.

10.5.21. KIT days don't need to be consecutive. They can include training or other activities which enable the employee to keep in touch with the workplace. Working for part of any day will count as one KIT day.

10.5.22. KIT days are paid as if at work, less any Occupational Adoption Pay (OAP) or Statutory Adoption Pay (SAP).

10.5.23. Adoption pay

10.5.24. Employees may be eligible for payment of OAP. If an employee is not eligible for OAP due to insufficient service, they may meet the criteria for payment of SAP.

10.5.25. Statutory Adoption Pay (SAP)

10.5.26. SAP is a benefit for employees on adoption leave. The UK Government determines the conditions and amount, but it is the employer who pays SAP to their employees.

10.5.27. Employees are paid 90% of their average earnings in the first 6 weeks of adoption leave. The next 33 weeks are paid at a standard SAP rate, or 90% of average earnings if this is less.

10.5.28. Average earnings are calculated based on earnings over the 8 weeks before the end of the qualifying week.

10.5.29. Contributions to the employee's pension will continue for this period.

10.5.30. SAP eligibility

10.5.31. To qualify for SAP, through adoption arrangements, an employee must have:

• 26 weeks of continuous service by the week they are matched with the child
• followed the application procedures set out in this policy
• average earnings above the lower earnings limit for National Insurance contributions during the 8 weeks before the end of the week they are matched with the child

Learn more about the lower earnings limit.

10.5.32. To qualify for SAP, through surrogacy arrangements, an employee must have:

• 26 weeks of continuous service by the 15^th week before the baby's due date
• followed the application procedures set out in this policy
• average earnings above the lower earnings limit for National Insurance contributions during the 8 weeks before the end of the week they are matched with the child

Learn more about the lower earnings limit.

10.5.33. If the employee adopts a child from overseas, the service requirement is the same. There are additional requirements, including:

• a declaration giving the date the child is expected to enter the UK
• confirmation that the employee will not also claim for new parent support pay

10.5.34. The employee should complete an Adopting a child from abroad form.

10.5.35. An employee's SAP can begin on the date the child is placed with them for adoption. It can be the following day, if the employee is at work on that date. Otherwise, SAP can begin on a predetermined date no more than 14 days before the date on which the child is expected to be placed with them. In a surrogacy case, SAP starts on the day on which the child is born, or if the employee is at work on that date, the following day.

10.5.36. All eligible employees will receive SAP even if they do not intend to return to work after adoption leave.

10.5.37. Occupational Adoption Pay (OAP)

10.5.38. OAP provides enhanced benefits to employees who intend to return to work after adoption leave.

10.5.39. The employee will receive full pay for the first 8 weeks of adoption leave, plus any SAP entitlement. They'll then receive half pay for the next 18 weeks and SAP or adoption allowance if entitled. The total will not exceed an employee's full pay.

10.5.40. For the next 13 weeks, the employee will receive any SAP or adoption allowance entitlement. They will receive no pay for the final 13 weeks of adoption leave.

10.5.41. To qualify for OAP employees must have 12 months of continuous service with one or more NHS employers. The continuous service period ends with the:

• week the adoption agency matches them with a child
• 15th week before the baby's due date if applying via a surrogacy arrangement

10.5.42. To calculate continuous service eligibility criteria, the employer should consult the NHS Terms and Conditions of Service Handbook.

10.5.43. There are notification requirements which must be fulfilled in order to be eligible for OAP. For more information, see:

• Guide for employees [guide to help employees use and understand the Adoption, Fostering and Kinship Care Policy]
• Adoption leave form [form to notify manager of intention to take adoption leave]

10.5.44. Employees returning to NHS employment

10.5.45. Employees who intend to return to NHS employment for at least 3 months after their adoption leave ends will be entitled to OAP.

10.5.46. Employees are also entitled to take a further 13 weeks of unpaid leave to bring their total adoption leave period to 52 weeks. In exceptional circumstances, an employee may have their unpaid leave extended by local agreement.

10.5.47. By prior agreement, an employer may pay the employee's OAP differently. For example, a fixed amount spread equally over the adoption leave period or a combination of full pay and half pay.

10.5.48. Employees not returning to NHS employment

10.5.49. Employees who do not return to NHS employment for a minimum of 3 months after adoption leave must repay their adoption pay less any SAP.

10.5.50. Adoption Allowance (AA)

10.5.51. Employees who do not meet SAP or OAP criteria should contact their local Jobcentre Plus office to ask about AA. Unlike SAP and OAP, AA is not paid by the employer. Instead, AA is paid directly by the UK Government.

10.5.52. Adoption Disruption

10.5.53. Should the adoption breakdown, the employee will be entitled to continue their adoption leave and receive the appropriate payment for that time.

10.5.54. Bank and agency staff

10.5.55. Bank staff are not entitled to OAP or adoption leave. However, they may be entitled to SAP, depending on their level of earnings. The employer may review entitlement to OAP in exceptional cases, such as if the worker can demonstrate regular work patterns over an extended period.

10.5.56. Agency staff may be entitled to adoption leave and SAP if they are considered an employee of the agency. This should be checked with the relevant agency.

10.5.57. Employees on a fixed-term or training contract

10.5.58. An employee may be on a fixed-term or training contract that expires between 11 weeks before and 6 weeks after the date of adoption. If this is the case, and they satisfy the eligibility criteria, the employer will extend the employee's employment contract so they receive 52 weeks of adoption leave, OAP, and SAP.

10.5.59. Rotational training contracts

10.5.60. Employees, such as doctors and dentists on the Scottish Medical Training programme, are employed on regional training contracts. They must notify their manager within the Placement Board about their intention to take adoption leave.

10.5.61. The Placement Board will notify the Employing Board of the employees' intention to take adoption leave. The Employing Board will confirm the employees' adoption leave and pay entitlement. An employee on a rotational training contract may be able to rely on the provisions at 15.87 of the NHS Terms and Conditions of Service Handbook.

10.5.62. Fostering procedure

10.5.63. Fostering can be short-term or long-term. Managers should adopt a flexible approach to this.

10.5.64. Employees should discuss their intention to foster with their manager as soon as possible to determine the appropriate level of support required.

10.5.65. For very short-term fostering, the manager should consider providing time off under the Special Leave Policy. However, approval is not guaranteed. For longer-term fostering, the manager should consider providing time off under the arrangements for:

• adoption leave where the placement of the child is prior to formal adoption
• parental leave [Parental Leave Policy]
• new parent support leave [New Parent Support Policy]
• career break [Career Break Policy]

10.5.66. Kinship procedure

10.5.67. Employees should discuss kinship arrangements with their manager as soon as possible to determine the appropriate level of support required.

10.5.68. Employees who need time off should request it under the following policies:

• Special Leave Policy
• Flexible Work Location Policy
• Flexible Work Pattern Policy
• Career Break Policy

10.5.69. Resolution of disagreements

10.5.70. Should a disagreement arise, the employee has the right to raise matters under the Grievance Policy. It may be appropriate for either party to seek advice on resolving the matter from HR colleagues or a trade union representative. They should seek early resolution wherever possible.

10.5.71. Related policies:

• Maternity Policy
• New Parent Support Policy
• Shared Maternity and Shared Adoption Policy
• Parental Leave Policy

10.6. Supporting documentation

It is proposed that the supporting documents listed below will be developed to support the policy. Supporting documents are not part of the consultation. These will be drafted following the consultation when responses have been analysed and the policy is developed in a final draft.

Employee guide

Descriptor: guide to help employees use and understand the Adoption, Fostering and Kinship Care Policy.

Manager guide

Descriptor: guide to help managers use and understand the Adoption, Fostering and Kinship Care Policy.

Adoption, Fostering and Kinship Care policy flowchart

Descriptor: visual and text alternative flowcharts outlining the key steps in the Adoption, Fostering and Kinship Care Policy.

Adoption Leave Form

Descriptor: form to notify manager of intention to take adoption leave.

Adopting a child from abroad form (SC6)

10.7. Consultation questions

We are inviting responses to this consultation using the Scottish Government's consultation hub. The following questions are set.

In your response, all questions have the option to answer yes or no. You are invited to provide further comment in a free text box. If you wish to make specific reference to a section of the policy, please quote the relevant numbered line in this consultation document.

1. Do you feel there are any gaps in the policy?

2. Do you feel there are any gaps in the proposed list of supporting documents?

3. Do you have any other comments to make on the policy?

4. Do you have any views on the potential impacts of this policy on equalities groups?

It is against the law to discriminate against someone because of: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. These are protected characteristics under the Equality Act, 2010.