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The Government has now published a response to its third consultation on Additional Paternity Leave (APL) and Pay, as well as six sets of final draft Regulations intended to introduce this new entitlement. Government guidance will be published in due course.

The Regulations are expected to come into force on 6 April 2010 and will apply to parents of babies due on or after 3 April 2011 and adoptive parents who are notified of having been matched with a child on or after that date.

Under The Additional Paternity Leave Regulations 2010 (which can be found on the OPSI website by clicking HERE), eligible employees will have the right to take up to 26 weeks' leave to care for a child before the child's first birthday.

Eligibility criteria

These mirror the criteria applicable to existing statutory paternity leave, which will be referred to as Ordinary Paternity Leave (OPL). For example, the father/partner must have no less than 26 weeks' continuous employment ending with the relevant week (the week immediately preceding the 14^th week before the expected week of childbirth).

In addition, (1) the mother must return to work having declined to take a proportion of her OML and/or AML; and (2) the father/partner must have continued in employment with his/her employer up to the date on which he/she intends to take APL.

The mother will be treated as returning to work when her maternity leave period ends. She will retain the option of taking annual leave or parental leave to facilitate the handover of primary childcare responsibilities to the father/partner.

Taking APL

The earliest a father/partner will be able to take APL would be 20 weeks from the child's date of birth. The minimum period of APL will be 2 consecutive weeks and APL must be taken in multiples of complete weeks and as one continuous period. A gap between the end of statutory maternity leave and the beginning of APL will be permitted.

Mirroring the minimum notice period required from a mother who wishes to return to work early from maternity leave, a father/partner will be required to give a minimum of 8 weeks' notice of their intention to take APL. The employer will then be required to provide written confirmation of the father/partner's start/end dates for APL within 28 days.

The Government have adopted a "light touch" approach to verification of entitlement by the employer.

• The new system will rely largely on self-certification (by completion of an amended version of HMRC's existing SC3 form or a substitute). A father/partner must give their employer: (1) a written leave notice setting out the child's date/week of birth and the start/end dates of the chosen period of APL; (2) a written employee declaration signed by the father/partner confirming his/her eligibility; and (3) a written mother declaration confirming her name, address, national insurance number, intended date of return from maternity leave and consent to the employer processing her personal data, and also confirming the father's/partner's status and that the father/partner is the only person exercising the right to APL in respect of the child.
• Within 28 days of receipt of the leave notice, the employer can request a copy of the child's birth certificate and the name/address of the mother's employer. The father/partner has 28 days to respond.
• HMRC will conduct compliance checks on some employees and employers, and there will be financial penalties for those who abuse the system.

Except for terms relating to remuneration, a father/partner will have a statutory right during APL to benefit from the terms and conditions of employment which would have applied had they been at work. Therefore, mirroring the provisions during OPL and maternity leave, entitlement to benefits (e.g. holiday, company car) will continue.

Up to 10 KIT days may be worked by a father/partner during APL on the same terms and conditions as a mother on maternity leave.

A father/partner taking APL will be entitled to the same right to return to work as a mother returning from OML i.e. he/she will have the right to return to the same job on the same terms and conditions as before APL began.

Paternity pay

Under The Additional Statutory Paternity Pay (General) Regulations 2010 (which can be found on the OPSI website by clicking HERE) and The Additional Statutory Paternity Pay (Weekly Rates) Regulations 2010, a father/partner will be entitled to received Additional Statutory Paternity Pay (ASPP) at the same rate and calculated in the same way as and broadly mirroring existing statutory paternity pay (currently £123.06 per week), which will be referred to as Ordinary Statutory Paternity Pay (OSPP).

To qualify for ASPP, the mother must have been entitled to maternity allowance or statutory maternity pay and must have returned to work. The number of weeks of ASPP payable will depend on the number of weeks the mother had left of her entitlement to maternity allowance or statutory maternity pay prior to the start of ASPP.

Getting ready for 3 April 2011

The provisions described are the statutory minimum entitlement and it would of course be open to employers to implement an enhanced paternity leave and pay scheme. Employers have over a year to put appropriate documentation in place and to communicate the new entitlement to its employees.

Many employers currently pay the employee's full salary, rather than the statutory rate, during statutory paternity leave. If, due to the longer period of entitlement, the employer intends to revert to paying the statutory rate during ASPL then contractual terms/paternity policies will need to be updated.