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Children Removed by Department of Community Services Have the Right to be Breast Fed

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on Sun, 02/12/2012 - 18:50

Children Removed by Department of Community Services Have the Right to be Breast Fed

This paper is designed to give a brief overview of the law in relation to parenting arrangements of breastfed children across Australia. Readers should appreciate that all laws are subject to change and that each case is subject to circumstantial differences - both these factors mean that the following information should be regarded as a guide only and that only your lawyer can give legal advice relevant to you.

A Right to Breastfeed?
In the context of parenting issues, including breastfeeding, it is essential that parents understand that legal rights are usually vested in the child and not in parents. For example, under international and national law mothers do not have a legal right to breastfeed their children, although, arguably, all children have the right to be breastfed.

National laws dealing with parenting arrangements for children of separated and divorced couples are contained in Part VII of the Family Law Act 1975 (Cth). The Family Law Act does not specifically deal with or mention breastfeeding. Rather, any 'rights' of Australian children to be breastfed are contained in several sources of international law. International law is not specifically enforceable in Australia but it is influential.1 Australian Courts, such as the Family Court, may take international law and 'rights' into account when dealing with cases involving breastfed children. There are several sources of international law which suggest that children have a right to be breastfed. They include:

the UN Convention on the Rights of the Child, which is the most widely ratified and accepted international treaty in history. Article 24 of this Convention requires Parties (this includes Australia) to legally "…recognize the right of the child to the highest attainable standard of health… State Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures … to ensure that all segments of society, in particular parents and children are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, (and) the advantages of breastfeeding...".
the International Code of Marketing of Breastmilk Substitutes adopted by the World Health Organization in 1981 and accepted by Australia. Paragraph 1 of the Code states its aims as being "to contribute to the provision of safe and adequate nutrition for infants, by the protection and promotion of breastfeeding..."
Relevant to international law generally, UNICEF has produced the 1990 Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding which states that breastfeeding provides "…optimal maternal and child health and nutrition, (and that) all women should be enabled to practice exclusive breastfeeding and all infants should be fed exclusively on breastmilk from birth to 4-6 months of age. Thereafter, children should continue to be breastfed, while receiving appropriate and adequate complementary foods, for up to two years of age or beyond."

First Steps after Separation - Avoiding the Court System
Most parents who separate from each other decide between themselves how children will be cared for. Therefore it is imperative that the father understands why breastfeeding is important for his child's health. The following information may convince fathers of the important benefits of prolonged breastfeeding:

UNICEF officially recommends that babies "…breastfeed exclusively for the first six months and … continue to breastfeed for two years or more with age appropriate, responsive complementary feeding."2 UNICEF has also published a book, detailing the many benefits of breastfeeding, entitled Breastfeeding: Foundation for a healthy future, which can be downloaded for free (12 pages, in PDF format) from the UNICEF website. 3
The World Health Organization (WHO) recommends "…exclusive breastfeeding for 6 months … Thereafter infants should receive complementary foods with continued breastfeeding up to 2 years of age or beyond." 4
The American Academy of Pediatrics has released a policy statement that states, "Exclusive breastfeeding is ideal nutrition and sufficient to support optimal growth and development for approximately the first 6 months after birth…Gradual introduction of iron-enriched solid foods in the second half of the first year should complement the breast milk diet. It is recommended that breastfeeding continue for at least 12 months, and thereafter for as long as mutually desired." 5

Contact the Australian Breastfeeding Association, the Lactation Resource Centre or La Leche League for more specific information on the scientific evidence supporting the benefits of breastfeeding beyond the first few months.

Fathers are often aware of the importance of breastfeeding for their child and in this case, organising parenting arrangements which allow access for the father, but also protect the breastfeeding relationship may be easier to agree on.

If there is a disagreement about access while the child is still breastfed, recording meetings and discussions and each other's attitude to the child's needs and the parents' responsibilities may help the Court to determine a resolution.

Parents who wish to keep lawyers and the Courts out of their lives, but are having difficulty agreeing on a parenting arrangement, can approach the Family Court Counselling Service for access to a free counselling service, staffed by qualified social workers and psychologists with specialist expertise in working with families who are dealing with separation. Visit for more information or call the Family Relationship Advice Line on 1800 050 321.
Parenting plans
If the parents are able to come to a parenting arrangement with which they are both reasonably happy they may allow their agreement to remain informal, and therefore flexible, or they may make a written agreement, called a 'parenting plan', which can be registered at the Family Court.6 Once registered, parenting plans become legally enforceable. Parenting plans can be subsequently changed, but only with further legal entanglement of the parents (in plain English - it is a hassle!). It is highly advisable that both parents seek professional legal advice before agreeing to, signing and registering a parenting plan.
Getting the Family Court involved - Parenting Orders
Any person may apply to the court for a parenting order in relation to that child if she or he is "concerned with the care, welfare or development of the child", specifically this includes (but is not restricted to) either or both of the child's parents.7 The Court will encourage the parents to come to an arrangement between themselves. If the parents cannot come to a mutually agreed arrangement then the Court will make a parenting order as it thinks proper.8 The paramount consideration of the Court when making a parenting order is the "best interests of the child."9 The Court is bound by law to presume that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.10 This presumption will not apply if:

the Court is convinced that there are reasonable grounds to believe that a parent of the child, or person who lives with the parent of the child, has engaged in abuse or family violence.11 Or if
the Court is presented with convincing evidence that it would not be in the best interests of the child for the child's parents to have equal shared responsibility for the child. 12

Factors relevant to the best interests of the child in this context include: 13

the benefit to the child of having a meaningful relationship with both of the child's parents;
the need to protect the child from physical or psychological harm;
the nature of the child's relationship with the parents or any other persons (such as grandparents);
the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of the parents or any other person (such as siblings or grandparents) with whom the child has been living. Courts are often unwilling to change the "status quo". This means that if the child primarily spends time with the mother before the Court hearing, then the Court may be more likely to make an Order for this, or a similar, arrangement to continue. Parents seeking to change the status quo must prove that this change would be likely to be a positive/improved change for the child; 14
the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs;
the maturity, lifestyle and background (including cultural traditions) of the child and of either of the child's parents. In this context, inflexible religious convictions or an overtly "loud & proud" homosexual lifestyle may (though not necessarily) work against parents;
if the child is of Aboriginal or Torres Strait Islander background, whether or not separation from the parent of the same background would impact on the child's right to enjoy his or her Indigenous heritage;
the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child's parents;
any other fact or circumstance that the Court considers relevant.

If the Court accepts that it is in the best interests of the child for the parents to have equal shared responsibility for the child, the court must consider whether or not it is in the best interests of the child to spend equal time with each of the parents and whether or not this would be reasonably practical.15 If the Court is presented with evidence that the child is being breastfed as well as evidence that it is in the child's best interests to breastfeed, it is often the case that the Court will make a parenting order which best enables that breastfeeding relationship to continue - usually this will mean that the court will order that babies and toddlers will spend most time with their mother with short (for example, two to three hours), but regular (possibly daily), time spent with their father.16 Overnight stays with the father are often not ordered by the Court until the child is three or four.17 However, longer overnight stays maybe ordered at an earlier age if the father has been a very hands-on carer of the child since the child's birth. 18
Some Examples of Family Court Orders of the Past:
Here follows some examples of how the Courts have made orders involving separated parents with breastfed babies. These cases demonstrate that the Courts will try to make orders which facilitate an ongoing breastfeeding relationship between mother and child when to make such orders is in the best interests of the child. However, no mother should take it for granted that just because she is breastfeeding that Court orders will be made with the objective of continuing the breastfeeding relationship. As outlined above, there are a myriad of factors that Courts will take into account when making Parenting Orders and breastfeeding is likely to be regarded as just one factor to take into account, amongst many others, with regards to the principal consideration of the Court, namely, the best interests of the child.

In H & D [2003] FMCAfam 290 (18 July 2003) the Federal Magistrates Court determined that a seventeen month old child should primarily live with his mother and that she would have sole responsibility for the day-to-day care, welfare and development of him, partly because, in the words of Federal Magistrate McInnis, "it is appropriate and in the interests of the child that the child as far as possible continue breastfeeding on demand without undue disruption". Interestingly, in this case the applicant father referred to the issue of breastfeeding "… in relation to it being seen by him as being used by the respondent mother as a `weapon' to resist long-term contact and certainly overnight contact that the applicant father may wish to have with the child." Federal Magistrate McInnis condemned the father's attitude as demonstrating "…little or no insight into the reality of breastfeeding … which is required for the comfort of the child but (also) for the social benefit of the child and indeed medical benefit of the child." Federal Magistrate McInnis went on to say that:

"A lack of insight demonstrated by the applicant father in relation to that issue was evident during the course of submissions this day where he submitted that no medical report had been tendered or relied upon in relation to breastfeeding. To even suggest that a medical report for a child this age would be required shows in my view a complete lack of understanding of the very fundamental commonsense approach that one would normally adopt to the social, physical, mental and medical desirability of children being breastfed at this age. The fact that the child is on demand breastfeeding is not a matter which I would regard as detrimental on any basis to the child. It is a relevant factor to take into account and is relevant in relation to the interests of the child and significant to the issue of the happiness and contentment of the respondent mother. The applicant father's evidence in relation to that issue as indicated demonstrates a complete lack of insight…. the breastfeeding of a child, apart from being clearly in the child's interests, also has a role to play in maintaining the happiness and contentment of the respondent mother. Ultimately, that happiness and contentment of the respondent mother would be a benefit to the child. "

Likewise, in SDW & JCJ [2005] FMCAfam 210 (6 May 2005), the Federal Magistrates Court confirmed the importance of breastfeeding. In granting orders for the father of a baby to spend time with the child the court stated that the "duration of contact should not interfere with the mother's desire to breastfeed." This was another case where the father believed that the mother breastfed in order to disrupt contact with the child. This proposition appears to be looked upon with circumspection by the Family Court, which went on to state that the father in this case was "emotionally immature … (and that he) demonstrated an inability to understand the child's physical and emotional needs". Unsurprisingly, the father's attempt to have the child primarily live with him failed. Whilst the Family Court will take into account the desirability of babies being breastfed, it does not allow breastfeeding to be used to justify unreasonable assertions by mothers. For example, in S & L [2002] FMCAfam 195 (10 May 2002) Federal Magistrate Scarlett rebuffed the mother's claim that her five month old baby could not spend time away from her for more than 30 minutes, stating that "to indicate that a child on the breast at the age of nearly six months, cannot be taken away from the mother for a period in excess of 30 minutes, is a submission not backed by any medical evidence whatsoever, and is contrary to the general knowledge of adults who are parents in Australian society." Federal Magistrate Scarlett went on to grant orders in favour of the father spending time with the child which were compatible with breastfeeding (time spent for one hour at a time until the baby reached approximately one year and for five hours at a time after that).

One Stop Shop - Things Mothers Can Do to Help Their Legal Case:

Try not to stop the father spending time with the child, so long as this does not interfere with the best interests of the child (such as maintaining a breastfeeding relationship). The Family Court does not look favourably upon parents who seek to stop the other parent from spending time with the child - unless the mother can demonstrate that she is concerned the child will be exposed in any way to violence, abuse or neglect whilst in the care of the father. For breastfed babies and toddlers it is often perceived as reasonable for the father to see the child for around two to three hours at a time, a few days a week. However, there is no blanket rule as to what is reasonable as everyone's circumstances are different.
Mothers should not be violent with their children in any way or associate with people who have a history of violence.
Try not to give the father or the Court the impression that you hold strong religious convictions and a rigid desire to raise children in line with these religious beliefs when the father is of another (or without) religion. This is because Australian Courts do not always look favourably upon a parent who holds a rigid desire to raise their children within a strict religious setting, if the other parent does not share the same religious beliefs. If both parents share the same religious persuasion then religiosity is unlikely to work against either parent. It should be pointed out that it is the inflexibility of the parent that is a problem for the Court, not religion. If a religious parent is flexible about the religious traditions within which the children are raised then the Court should not make an adverse finding against the religious parent.
Try not to hide any history of mental health problems. It is better for mothers in this situation to define their own mental health situation, with reference to medical evidence and dates.
Try to keep your children's living environment clean and tidy.
Try to avoid using any of the following terms in relation to their role in the child's life or to the father spending time with the child: 'custody', 'guardianship', 'access', 'residence' and 'contact'. These are now largely irrelevant legal terms of the past, usage of these words may make mothers appear ignorant or disrespectful of the current state of the law. 19

Essentially, mothers should try to present themselves to the Court as stable, open minded and caring individuals. Mothers who can demonstrate to the Court that they wish to facilitate a good relationship between father and child (in the absence of possible violence, neglect or abuse), are willing to share parenting decisions with the father and who, first and foremost, act with the best interests of their child at heart are viewed with most favour by Courts issuing Parenting Orders.

Suggested Further Reading:

Livermore M, The Family Law Handbook, Redfern Legal Centre Publishing, Sydney, 2006
The Family Law Act 1975 (Cth) Part VII - this can be accessed for free on the AustLII website at
Family Court website at
Family Relationships Online at


Chisholm R & Nettheim G, Understanding Law, 5th Ed, Sydney, 1997 at 20
The Family Law Act 1975 (Cth) ss 63A-63H
The Family Law Act 1975 (Cth) s 65C
The Family Law Act 1975 (Cth) s 65D
The Family Law Act 1975 (Cth) s 60CA
The Family Law Act 1975 (Cth) s 61DA
The Family Law Act 1975 (Cth) s 61DA(2)
The Family Law Act 1975 (Cth) s 61DA (4)
The Family Law Act 1975 (Cth) s 60CC
Livermore M, The Family Law Handbook, Redfern Legal Centre Publishing, Sydney, 2006 at 236
The Family Law Act 1975 (Cth) s 65DAA(1)
Livermore M, The Family Law Handbook, Redfern Legal Centre Publishing, Sydney, 2006 at 248-249
Id at 224

September 2007. Revised May 2010.


Lukes Dad's picture

All I can suggest is to fight the CAO they probably have on the babies. Do a mental health assessment and prove you're okay. Don't let them choose the assessor, ask for a panel of three professionals which you choose yourself and agree on one assessorwiyh DoCS because chances are their pick of assessor will be corrupt. tell Mum to keep expressing and DON'T STOP! This will be a huge factor when you go to court. Ask the judge for contact with the babies THREE times a day for breast feeding and bonding until these assessments are done. Go get drug tested to save them asking for it. Find a good lawyer. When I say "you" I mean the Mum.

Lukes Dad's picture

Babies removed by the department of community services should still be breast fed by mothers.

Access, the law and a breastfed baby
February 18, 2010

Today, I was called to advocate in court (in my capacity as an International Board Certified Lactation Consultant) for an illiterate migrant woman who had her baby removed whilst a patient in a psychiatric ward. This poor mama had been fully breastfeeding her 4 month old when she reported that she had been raped. While in a police station the baby was taken from her (this was probably appropriate while the mother was interviewed etc). However, the mother who was traumatised and thought her baby had been taken off her attempted suicide whilst in the police station. This is how she became a psychiatric inpatient.

Sadly, officials didn’t organise access of baby to mother so breastfeeding could continue: in 5 days the baby was taken to the mother only once – according to a social worker, the baby lit up when she saw her mother , their mutual gaze was exquisite, they were perfectly attuned and the baby breastfed voraciously. Although the mother was expressing her milk with a hospital breast pump during separation from her baby, the precious liquid gold was being dumped down a sink – not because it was contaminated by medications that may harm the baby, but because of a communication breakdown – nobody followed through so that the milk could be given to the baby.

Today’s case was initially about gaining daily access for baby to her mother so breastfeeding could continue. Very quickly it became evident that unless a placement in a mother baby unit where the mother could be with her baby under supervision, the baby would be weaned and placed in longer term care, regardless of the mother’s willingness to breastfeed or provide her milk for her baby.

Access to her mother’s milk is not only every baby’s birthrite, but a basic human right and this is what I argued today on behalf of this baby and her vulnerable, disempowered mother:

Ceasing breastfeeding poses health risks to both mother and infant, but particularly the infant.

UNICEF and the World Health Organization recommend breastfeeding until age two or beyond. Breastfeeding provides health benefits both for the baby (reducing the risk of juvenile diabetes, sudden infant death syndrome [SIDS]), meningitis, Crohn’s disease, celiac disease, chronic liver disorders, childhood cancers, asthma, ear infections, and diarrheal /gut infections), and for the mother, decreasing her risk of breast, ovarian, and cervical cancer. In addition, breastfeeding helps mothers bond securely with their babies, which is essential to a child’s future well-being.

As a breastfed baby, removed from her mother’s breast, this baby’s level of anxiety and stress would be extreme. This poses risks to mother-infant attachment that may compromise the baby’s emotional development. According to the Australian Association of Infant Mental Health, ‘a baby under two years and particularly under one year can be severely stressed by separation from the people he or she feels safe with even for short periods of time and ongoing stress affects the infant’s brain development. ‘

The impact of breastfeeding upon the mothering abilities of women is substantial: Australian research has found that women who do not breastfeed or breastfeed for a short time are at a 2.5 fold greater risk of neglecting their children (at any time through to 15 years) than women who continue to breastfeed (Strathearn, et al., 2009)

There is also the issue of food security. In a low income mother, if the baby was weaned and later returned to the mother, the cost of providing infant formula would significantly disadvantage the mother. This would increase the likelihood that the baby may receive inappropriate feeds if the mother couldn’t afford a recommended formula for her infant.

Although the mother is expressing milk, which demonstrates her commitment to her baby, this is not a longer term solution and may very quickly lead to premature weaning: the baby will become used to sucking a bottle which has a faster flow, requires a different suckling action and may then refuse to breastfeed at all. This would create extreme distress for mother and baby.

In 2000 a consensus statement regarding the nutrition rights of infants based on international human rights law and principles was developed (Kent, 2001). This consensus statement states that:

1. Infants have a right to be free from hunger and to enjoy the highest attainable standard of health.

2. Infants have a right to adequate food, health services and care.

3. The state and others are obligated to respect, protect and facilitate the nurturing relationship between mother and child.

4. Women have the right to social, economic, health and other conditions that are favourable for them to breastfeed or to deliver breastmilk to their infants in other ways.

5. Women and infants have a right to protection from factors that can hinder breastfeeding in accordance with:

· the Convention on the Rights of the Child

· the International Code of Marketing of Breastmilk Substitutes

· the International Labor Organization’s Maternity Protection Conventions

· the Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding

6. States, represented by their governments, have an obligation to:

Protect, maintain and promote breastfeeding through public educational activities

Facilitate the conditions of breastfeeding

Otherwise ensure that infants have safe access to breastmilk

7. No woman should be prevented from breastfeeding

The outcome

After many phone calls (only to discover there wasn’t a single bed available in any public mother baby unit), a full day of negotiations and some help from two wonderful paediatricians (thankyou Gillian Opie and Cathy McAdam -it certainly helps to know people in high places!) as well as information provided by other professionals who are also concerned about legal separations of breastfeeding dyads (thankyou Karleen Gribble) this baby has been admitted as a boarder in the paediatric ward in the hospital where the mother is being treated. The mother is ecstatic and, for now at least, she can enjoy holding her baby close as she nourishes her child with liquid love from her own heart, through her breasts.