A judge has ordered a new trial for parents who lost custody of their four children after their two-year-old niece died at Surrey Memorial Hospital.

The ruling by Vancouver B.C. Supreme Court Justice Grant Burnyeat criticizes the Surrey provincial court judge who gave custody of the children to the Ministry of Children and Families despite a court ruling absolving the mother of blame.

Justice Burnyeat called the lower court ruling "deficient" because it declared the children were at risk of physical harm without explaining why.

"There is no indication of the reasoning process," Burnyeat said in his written decision.

In April of 2005 Muhammad and Muzzammil Attiq-Ur Rahman were looking after their two-year-old niece when the child suffered a serious head injury. She was rushed to Surrey Memorial Hospital where she died.

Muzzammil Attiq-Ur Rahman was charged with manslaughter, but she was acquitted in May of 2008 after a judge determined the child, who had a history of seizures, suffered the head injury when she fell from a chair in the kitchen of a basement suite onto a concrete floor covered with linoleum

After the acquittal, the parents sued to get their children (now aged 10, nine, seven and six) back.

Even though Ministry social workers admitted there was no evidence of abuse or neglect of the children while they were living with their parents, on October 30, 2008 Surrey Provincial Court judge Marilynn Borowicz refused to return the children and ordered them put up for adoption.

In her reasons for judgment, Borowicz said "...there remains a significant unresolved risk of harm to the children..." if they are returned to their parents.

In his decision, Burnyeat criticized Borowicz for "a complete failure to either review or analyse any of the expert evidence" and failing to explain how she arrived at her findings.

No date for the new trial has been set yet.

The children remain in foster care.

dferguson@surreyleader.com