No reasonable grounds for apprehension, Man. appeal court rules.

The Manitoba Court of Appeal turned down a request by the Child and Family Services of Western Manitoba to overrule a provincial court decision. The lower court judge quashed an apprehension order.

The judge had stated he did not find that the agency had "reasonable and probable grounds" in March 2006, to believe that "S.L." was a child in need of protection. The agency could not therefore justify her apprehension from her father's care (the father is the custodial parent).

Complaints had been received from S.L.'s mother that an older step brother had sexually abused the child. When interviewed, he was a resident in the Centre for Adult Psychiatry. He admitted to the abuse.

However, SL's father did not believe the claims. The father's denial played a role in the agency's decision to apprehend the child.

The father told the agency he had no concerns for his daughter's safety as his son had not resided in his home with his half-sister since December of 2005 and that he was not about to reside in the same residence as his daughter because of his mental health problems. He would be lodging at the psychiatry centre for the foreseeable future. The agency argued that the girl was at risk.

In the subsequent court hearing, the father requested that the judge quash the apprehension order and the judge agreed. These were the reasons for the judge's decision:

* The alleged sexual abuse was "historic in nature" because no evidence of any abuse in the recent past occurred while S.L. was in her father's care.

* The father's denial does not raise any immediate protection concerns for S.L., as the son was in a custodial setting and unable to have access to the child.

* There is little evidence that the father refused to cooperate or protect S.L.

* By preventing the son from having access to her, there is no evidence the father refused to take steps to protect S.L.

The agency argued in its appeal that the judge adopted a very narrow view of "reasonable and probable grounds," more analogous to an emergency threshold. Specifically, the agency argued that the judge failed to consider the emotional well-being of the apprehended child. The appeal court ruling states that the agency did not present the emotional wellbeing of the child in the lower court hearings.

The appeal court backs the conclusion of a lack of reasonable and probable grounds to apprehend because the child was not in need of protection at the time of apprehension. "It is also clear that such conclusion is arrived at because of the fact that the apprehended child will not have any contact with her abuser due to the fact that he has been removed from the family home where the abuse is alleged to have occurred and that was the case at the time of apprehension," Justice Michel A. Monnin wrote on behalf of the three judges.

The decision allows the agency to use other less intrusive measures to assure the protection of the child.