A mother has claimed her baby boy is becoming ill because she has been prevented from breastfeeding the newborn after he was taken into care by Tusla, the child and family agency.
The woman, who cannot be named by court order, claims the child met all his developmental markers for the first two weeks after his birth, while she was breastfeeding him in hospital. Since then, she said the child has rejected the formula milk provided by the State, has not met his expected weight markers, is vomiting significant amounts after each feed and had been prescribed Gaviscon, which, she claims, is sometimes administered up to six times a day.
The woman submits that she is not disputing the jurisdiction of the court to make the order but she is asking the High Court to direct that the child be put back on her breast milk for the sake of his healthy development.
The action was taken by lawyers on behalf of the woman under article 40 of the Constitution, which deals with protection from unlawful detention. However, Robert Barron SC, for the woman, said the action taken under the article was solely about the breastfeeding issue.
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At the High Court on Thursday, Ms Justice Mary Rose Gearty remarked that the application was “very unusual” and an “innovative” one, in that it was using the emergency provision of article 40 to query the “custody or detention” of the child. The judge stressed that she used the word “detention very loosely” in the context of the case.
Ms Justice Gearty said it was the woman’s case, through her legal team, that a lawful detention, or a custodial care role, could potentially become unlawful over the breastfeeding issue regarding standard of care given to the child.
The woman submits that the child was taken from her due to her mental health issues and that she was briefly prescribed, by her GP the drugs Xanax and Quetiapine. She submits she has medical letters saying that prescriptions issued were safe for breastfeeding.
In an affidavit the mother submits that she had been tested by a “dipstick” method that showed, she claims, a “false positive” for opiate presence. She claims the alleged false positive was backed up by letters regarding two full hospital tests that showed no unlawful opiates in her system, only the presence of the GP-prescribed medication.
She describes, in her submission, her baby’s situation as “urgent”, that there had been no satisfactory response to her solicitor’s letters from Tusla on the matter, and that she had arranged the hospital urine analysis herself.
“It is heartbreaking for me to see this situation continue day by day, with the respondent [Tusla] apparently not even having the time to respond to our entreaties,” she submits.
Tusla, the woman claims, then sent her a communication saying they could only “advise” on when it was safe to restart breastfeeding, despite the clear tests.
The woman alleges that she herself had tried to feed the baby formula during access visits but the baby was unable to take the formula without what she describes as “retching”.
She claims a statement from the baby’s interim foster carer read: “These developments are a matter for grave concern. They clearly demonstrate that the current feeding plan is not meeting the baby’s nutritional needs and has resulted in suboptimal weight gain.”
The woman claims it was “unequivocally” necessary that breastfeeding resume without “unjustified delay” and that any further postponement of such “risks the baby’s health, weight gain, gut development and overall wellbeing”.
Ms Justice Gearty was told additional affidavits and responses were required in the case before it could be heard. The judge adjourned the matter to next week.
