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FactsEdit

This was an appeal from a determination that children were not in need of protection. The Minister of Community Services was told that the father bruised one of his six children by using a rod to administer corporal punishment. It was alleged that the children were schooled at home and did not socialize with other children. The Minister conducted an investigation. The Minister's application for a protection order under s. 22(2) was dismissed. The trial judge found insufficient evidence to warrant a protective services order. The Minister argued on appeal that the evidence established that the children were at risk. The Minister argued that the trial judge applied the wrong standard in determining whether the children were at risk. The Minister further argued that the trial judge erred by considering criminal cases involving parental use of reasonable force in disciplining children.

IssueEdit

  1. Are the children in need of protective services?

DecisionEdit

Appeal allowed.

ReasonsEdit

Pugsley, writing for the court, held that the children were in need of protective services. While there was no evidence to support a finding under s. 22(2)(a), there remained a substantial risk of imminent physical harm under s. 22(2)(b). The evidence of minor reasons for chastisement, the frequency of chastisement, the high number of strokes, the young age when it commenced, and granting of authority to other children to chastise all supported this inference.

He takes pains to point that that conduct that would not necessarily be criminal (as in this case under s. 43 of the Criminal Code) could still result in child being in need of protection.

RatioEdit

Children may still be in need of protective services even if there is no evidence of behaviour which rises to the level of a crime.

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