When a Breastfeeding Mother is called as a Court Witness

If a breastfeeding mother is summonsed to take part in jury service, she can ask for this to be deferred. See our article Breastfeeding and Jury Service
However, sometimes a breastfeeding mother is summonsed as a witness in a court case, either because she has previously provided evidence in a criminal or civil case, or because of involvement in her professional work life. It may be that she has been a witness to a road traffic accident which results in civil proceedings. In this case, either party could request a summons for her to attend.
This article addresses some of the questions that arise from this.

I’m on maternity leave, can I still be asked to attend court?
If you are summonsed as a witness in a case, this is subject to court procedure rules and is a different situation to being asked to go into work. It’s considered a public duty and it could be that the evidence you will provide will have a crucial effect on the outcome of the case. This may particularly apply in the areas of social work and family cases where the input you are able to give could be of crucial assistance to the judge, and the decisions made about another family’s life. It is worth checking with your work colleagues if this is the case or if someone else might be able to attend in your place.

Can’t I give a video testimony?
This is rarely possible but, even if it is, you may still have to attend court just in case, on the day, other parties in the case wish to question you.

I can’t leave my breastfed baby
Although you almost certainly have to attend, you can request that special accommodation be made to keep you and the baby together, therefore maximising the quality of your evidence. In the first instance it will be worth talking to the barrister and solicitor representing the side of the case you have been called to give evidence for. This might include a representative from the Crown Prosecution Service (CPS) in a criminal case, or a representative for the local authority in a family matter.

You can explain that you need the baby to be with you to be able to breastfeed. As with the situation if you were called for Jury Service, you can point out the possible risks from being separated from your baby, such as developing engorgement or mastitis, a very painful condition, if you are unable to feed your baby.

The stress of being separated from your baby, along with discomfort and anxiety, may mean it will be hard for you to give optimal evidence. You can explain that if provision is not made for your situation, it could lead to you feeling ill and this is unfair to both you and the family concerned.

Risks for the baby include the unavailability of breastfeeding to provide nourishment and comfort. It is often assumed that a baby can just take milk from a bottle, but the action of feeding is very different and many cannot adjust. A baby should not have to have formula against a mother’s wishes, and it takes time to build up an adequate supply of expressed milk. The baby may feel emotional distress being away from his mother.

Being separated will also mean that milk supply will drop down with consequences for the future. It may take time for the mother to increase her supply once more, and lead to distress for her and the baby.

Judges’ Procedural Rules can be applied to allow you to be with your baby
Judges have procedural rules around settling witnesses who have breastfed and special accommodations can be made to keep you and your baby together. The judge needs to balance the needs of the mother and baby against the interests of justice, which require hearing from the witness.
Babies in arms can be admitted into court rooms and can even be held and fed by a mother whilst she is giving evidence. Although this is up to the individual judge, they are required to be fair and they have other judges overseeing them to whom complaints can be made if necessary.

A public document called The Equal Treatment Bench Book explains how a judge should approach this.ⁱ
It states that “consideration should always be given to accommodating pregnant and new and breastfeeding mothers in any proceedings, whether they are parties, witnesses or representatives”.
“This may include sensitive listings, start and finish times and breaks during the proceedings, sometimes resulting in a case going part-heard”.

“A woman who is heavily pregnant or who has just given birth should not be expected to attend a court or tribunal unless she feels able to do so. […] this is likely to apply to at least the month before birth and at least two months after the birth. The period would be longer if there were complications at birth. Even a telephone hearing may be too difficult if the mother is looking after the baby on her own. This may mean that a hearing has to be adjourned”.

“Breaks should be allowed for breastfeeding, having checked with the mother as to the best timing”.
“It may be possible to conduct a hearing with a baby or child in the court provided the baby or child is not disrupting the hearing e.g. by crying or making a noise. However, a hearing should not be conducted in the presence of a child unless the judge is satisfied that it is appropriate in all the circumstances for the child to see and hear the proceedings”.

Mothers’ experiences
1. “I was really upset to be called at short notice as a witness. I explained I had a breastfed baby I could not leave. I was told I could have a consultation room for my mum and baby to stay in and she had the number for the social worker who was in court who could tell me when a break was needed for me to go and attend to baby. They also said I could take any other breaks I wanted and that I would need to be there for two hours and would be questioned for 75 minutes. In the event my written evidence proved enough, and I didn’t need to appear on the stand.”

2. “I was called as a witness in a criminal case and my mother was allowed to go with me and my baby. We were there for two days, but in the end I wasn’t called to give evidence. I felt reassured knowing my mother was there with my baby.”

3. “I had been able to video my testimony but still had to attend for cross questioning. However this was really brief and my baby didn’t need to nurse while I was in court.”

4. “I worked in a role where I had to stand as an expert witness in court. It was emphasised that when we took on clients if that family were to go to court at any point in the coming years we would be obliged to attend, regardless of circumstances. I left my baby with a relative the one time I had to go to court and it was hugely nerve-wracking.”

Summary
While you most likely cannot avoid going to court if summonsed as a witness, there are procedures in place to protect you and your baby’s breastfeeding relationship. Not everyone may be aware of this, so do ask about them and explain why they are important.

Written by Anna Burbidge with input from Johanna Rhys-Davies, March 2020