Under new regulations, mothers of babies due on or after 3 April 2011 can transfer up to 6 months of their maternity leave to the baby"s father if the mother decides to return to work and opts not to take their full maternity leave.

What was the previous position?

Since 6 April 2003, fathers have been entitled to take up to 2 weeks ordinary paternity leave (OPL) within 56 days of a childs birth or placement for adoption.

Mothers have been entitled to take statutory maternity leave for up to 52 weeks. Mothers are entitled to receive Statutory Maternity Pay for up to 39 weeks of the leave. The standard rate of Statutory Maternity Pay has recently increased from £124.88 to £128.73, or 90% of the employees average weekly earnings, whichever is lower.

What is changing?

Additional Paternity Leave (APL) can extend a fathers leave from 2 weeks to a maximum of 26 weeks.

When can APL be taken?

The period of APL must be taken within the period that starts 20 weeks after, and ends 12 months after, the childs date of birth or placement for adoption and is dependent on the employees spouse, civil partner or partner having returned to work from their statutory maternity or adoption leave.

Does the father have a right to be paid during APL?

To qualify for Additional Statutory Paternity Pay (ASSP), the father must be an employed earner. ASSP is only payable during the period of the mother"s 39 week Maternity Allowance, Statutory Maternity or Statutory Adoption Pay period. The standard rate of ASSP is £128.73, or 90% of the employees average weekly earnings, whichever is lower.

Are all fathers entitled to APL?

APL is available only to eligible employees, not to other types of worker or the self-employed.

To qualify for leave, in birth cases, the employee must:

• Have been continuously employed for at least 26 weeks ending with the relevant week (the week immediately preceding the 14th week before the childs expected week of birth).
• Remain in continuous employment with that employer until the week before the first week of their APL.

Be:

• the childs father; or
• married to, the partner or civil partner of the childs mother.
• Have, or expect to have, the main responsibility (apart from the childs mother) for bringing up the child.
• In addition, for the employee to be eligible to take APL, the childs mother must as a result of having become pregnant with the child, have been entitled to one or more of:
• maternity leave;
• statutory maternity pay; or
• maternity allowance.
• Have returned to work (or be treated as having done so).

In adoption cases, the employee must:

• Have been continuously employed for at least 26 weeks ending with the relevant week (the week, beginning with Sunday, in which the employee is notified of having been matched with the child).
• Remain in continuous employment with that employer until the week before the first week of their APL.
• Be married to, the partner or civil partner of the childs adopter.
• Have been matched with the child for adoption.

In addition, for the employee to be eligible to take APL, the childs adopter must:

• Have been entitled to adoption leave or statutory adoption pay with reference to the childs adoption.
• Have returned to work (or be treated as having done so).

When does the mother "return to work"?

Although there is no definition of a "return to work," during the Government"s consultation it was intended that the Regulations would provide for the mother or adopter being treated as having returned to work once her maternity or adoption leave period had ended. The mother or adopter would retain the option of taking annual leave or parental leave after this time. The government expected that, in reality, a significant number of mothers would to choose to take some of their accrued annual leave at this time in order to facilitate the handover of primary child care responsibilities to the father.

However, subsequent guidance and commentary suggests that a period of "annual, sick or parental leave directly after the maternity leave but during the mothers statutory maternity pay or maternity allowance period is not a return to work. However, once the mother has returned to work any subsequent period of leave does not affect entitlement to additional paternity leave or pay."

The position therefore remains unclear.