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Old 05-03-2011, 09:45 AM
WorkingDAD WorkingDAD is offline
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The Breastfeeding Toddler

17 While most people are aware of the benefits of breastfeeding for infants, far less is known about the documented benefits of extended breastfeeding, particularly in North America where the practice is shrouded in secrecy. Extended breastfeeding refers, at least in North America, to breastfeeding beyond 12 months of age. As Doctor Ruth Lawrence of the American Academy of Pediatrics notes, it is not known how many North American women breastfeed beyond 12 months, largely because the societal taboo around breastfeeding toddlers tends to keep the practice hidden within the home.46 Outside of North America, extended breastfeeding is common with the average age of weaning worldwide being between four and five years.47 As noted above, the Canadian Paediatric Society, the World Health Organization and UNICEF each recommend breastfeeding for "up to two years and beyond". Significantly, each organization, as well as the American Academy of Pediatrics, recommends that weaning should be child, and not mother, directed. In other words, breastfeeding should cease when the child no longer requests the breast. Forced weaning can cause emotional distress to the child.

18 The research supporting extended breastfeeding is extensive. Not only do the already established health benefits of breastfeeding continue with older children, the breast milk actually changes to accommo-date the needs of a toddler as opposed to an infant. For example, the immunological benefits of breast milk increase during the second and third years of nursing, reducing the child's susceptibility to hundreds of infections and diseases, including pneumonia, strep throat, influenza, meningitis and measles, as well as many childhood cancers such as leukemia.48 In addition, the fat and energy content of breast milk increases after the first year and varies in the next two years to accommodate the toddler's developing system.49 Extended breastfeeding also provides security, comfort and attachment for the toddler in the same way as it does for the infant. Toddlers often nurse in the morning or before bed, and in situations of stress or discomfort. Contrary to suggestions that such behaviour creates a dependent or spoiled child,50 research shows that breastfed toddlers exert greater independence because they enjoy deep-seated security and attachment.51

19 While extended breastfeeding is fairly uncommon in Canada, the mothers who practice it do so for sound, empirically-based reasons. Yet, as Jennifer Johne found, judges rarely have any conception of the benefits of extended breastfeeding, treating it as an odd behaviour that should be brought to an end. In fact, it is not uncommon in such cases for judges, as Justice Ingram did in Cavannah, to suggest or even order a mother to wean the child.52 For example, in one of the few other extended breastfeeding cases in Canada,53 Fletcher v. Fletcher, Justice Quinn ordered that the mother begin weaning her daughter, holding that "while the mother may have an honestly held and well-intentioned theory on breastfeeding ... this breastfeeding must come to an end at some point."54 The mother had documentation from a breastfeeding expert indicating that breastfeeding is recommended for at least a year "with no upper limit". However, because the three-year-old child had been breastfed for "two years beyond the minimum recommended", the judge saw no reason for it to continue, accusing the mother of treating the child as an "appendage".55 Justice Quinn ultimately ordered that the mother cease breastfeeding within four months, after which the child would have overnight access with her father. That a judge was willing to actually order that a mother cease breastfeeding, rather than ask her to accommodate the access arrangement via pumping or nursing only when the child was in her care, is revealing of a complete lack of understanding around extended breastfeeding. Like Justice Ingram in Cavannah, Justice Quinn presumes that extended breastfeeding is a function solely of the mother's needs and desire, and thus finds it is perfectly appropriate for the mother to simply end breastfeeding or provide a "timetable" for weaning.56 Such an approach ignores recommendations about child-directed weaning, not to mention the ongoing health and emotional benefits to the child of the breastfeeding itself. As noted earlier, some children experience a great deal of trauma when forced to wean, particularly when the breastfeeding relationship has come to serve as a significant source of comfort and security.

20 While pumping, provided it does not decrease milk supply, could make the custody and access ar-rangements ordered in Cavannah and Fletcher physically workable,57 the willingness of the courts to order that mothers offer a timetable for weaning or cease breastfeeding altogether is a disturbing trend. The deci-sions seem to suggest that a father's right to access should trump a child's breastfeeding relationship with his or her mother, despite the established physical and emotional benefits of extended breastfeeding. The mothers in Cavannah and Fletcher are painted as intransigent and selfish, with the judges presuming that the mother's commitment to breastfeeding rests entirely on her desire to spite the child's father. While a mother who opposes access could use extended breastfeeding as a weapon, in these cases, this assumption is supported only by the judge's lack of knowledge about the practice. Rather than treating the mother's decision respectfully, the judges indicate a complete lack of understanding of why they might continue breastfeeding beyond one year and the benefits it will provide the child. By ordering the mothers to cease breastfeeding altogether, the judges demonstrate a disturbing attitude towards both breastfeeding and a mother's autonomy to make decisions about her child's health.
Conclusion

21 Cases such as Cavannah and Fletcher suggest that judicial education around breastfeeding, particularly extended breastfeeding, is needed. As the practice grows in North America and as more fathers seek access to very young children, judges are going to be faced with an increasing number of these cases. The current state of knowledge amongst judges appears to be fairly low; education will no doubt improve this. While breastfeeding should not be used to preclude father access, there should be more attention focused on how courts might accommodate the breastfeeding relationship, including families that continue breastfeeding beyond infancy. For example, access could take place within the mother's home, pumped breast milk could be used for older children where appropriate or, where a toddler only nurses at specific times, access could be arranged around that schedule. Beyond a requirement to accommodate, judges should be discouraged, if not prohibited, from ordering that breastfeeding cease.

22 Another possible solution is to include a reference to breastfeeding within the best interests of the child test. While no province in Canada has yet taken such a step, a number of jurisdictions within the United States address the issue in their family law legislation. For example, courts in Maine must consider the breastfeeding of a child under the age of one year in determination of what custody arrangement is in the best interests of the child.58 When determining "parenting time", Michigan courts must take into consideration whether a child younger than six months is breastfed, or if one younger than a year "receives substantial nutrition" from breastfeeding.59 Finally, the best interests test in Utah, which provides for a minimum visitation schedule for children under the age of five, allows that schedule to be varied in situations where "the lack of reasonable alternatives to the needs of a nursing child" require it.60 While the Michigan and Maine statutes focus on the breastfeeding infant, there is no reason that such a provision could not be extended to include older children who continue to breastfeed, as the Utah statute appears to do. These statutes not only require that courts address the important role breastfeeding plays in a child's development, they also promote the practice itself, something which is of even greater importance in the United States where breastfeeding rates remain extraordinarily low.61

23 Due to the increasing number of custody and access decisions in which breastfeeding is addressed, including a reference to breastfeeding in the best interests of the child test seems like an appropriate step to take. In fact, it might be of even greater importance at this particular time in history given the increased emphasis on both maximum contact and joint custody by Canadian courts. The risk under the current approach is that a father's right to maximum contact will always trump the breastfeeding relationship, as it did in both Cavannah and Fletcher. There may be cases where such a result is appropriate, particularly if the breastfeeding can be accommodated during access, but courts should not assume that extended breastfeeding is always less important than increased father access or that breastfeeding should cease altogether.

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RE AUTHOR:-- Fiona Kelly, BA (Melb), LLB(Hons) (Melb), LLM (UBC); PhD (UBC). Assistant Professor, Faculty of Law, University of British Columbia.
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