The registrar has power under section to prescribe the form and manner in which documents are to be delivered to her. This section is a new provision. It sets out the contents of the statement of capital and initial shareholdings. Currently, in the case of a limited company with a share capital the memorandum is required to state the amount of the share capital with which the company proposes to be registered and the nominal amount of each of its shares. The CLR recommended that the requirement for a company to have an authorised share capital should be abolished Final Report, paragraph The Act gives effect to this recommendation and in future, information about the shares subscribed for by the subscribers to the memorandum, which is currently set out in the memorandum itself, will be provided to the registrar in the statement of capital and initial shareholdings.
Like the statement of guarantee see section 11 , the statement of capital and initial shareholdings must contain such information as may be prescribed by the Secretary of State, in regulations made under the Act, for the purpose of identifying the subscribers to the memorandum i. For public companies, this requirement is linked to the abolition of authorised share capital see above. The statement of capital and initial shareholdings must contain the following information:.
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Whilst the Second Directive only applies to public companies it is important that the information on the public register is up-to-date for both public and private companies. This section replaces section 2 4 of the Act. It sets out the contents of the statement of guarantee that must accompany the application for registration where it is proposed that a company will be limited by guarantee on formation. The statement of guarantee is essentially an undertaking, given by the founder members of the company, to contribute to the assets of the company up to a specified amount in the event of it being wound up.
New members must also agree to make the same contribution. A member of a company limited by guarantee is only liable to contribute to the assets of a company if it is wound up during the time that he is a member or within one year of him ceasing to be a member. Like the statement of capital and initial shareholdings the statement of guarantee must contain such information as may be prescribed by the Secretary of State, in regulations made under the Act, for the purposes of identifying the subscribers to the memorandum i.
This section replaces section 10 2 and 3 of the Act and contains a new provision. Under section 10, details of the first director s and the secretary or joint secretaries must be given to the registrar at the time of application for registration. That requirement is carried forward but there are two changes:. These are specified in relation to directors in sections to This is in addition to the requirement for the usual residential address;. As now, a company which proposes to be registered as a public company must have a company secretary see section This section replaces section 12 3 and 3A of the Act.
At present, where an application for registration of a company is made in paper form, the application must be accompanied by a statutory declaration made before a solicitor or commissioner of oaths confirming that the requirements of the Act in respect of registration, and of matters precedent and incidental to it, have been complied with see section 12 1 of that Act.
This statutory declaration must be made by one of the persons whom it is proposed will be a founder director or secretary of the company that is, on registration or a solicitor engaged in the formation of the company. This statement must confirm that the requirements referred to in section 12 1 have been met. This statement does not need to be witnessed and may be made in paper or electronic form.
As with all documents delivered to, or statements made to, the registrar, it is an offence to make a false statement of compliance — see section This section restates section 12 1 and 2 of the Act. As now, where the registrar is satisfied that all of the requirements of the Act as to registration have been met she will register the documents delivered to her and issue a certificate of incorporation under section This section restates section 13 1 2 and 7 a of the Act and contains a new provision in subsection 2 , which prescribes the contents of the certificate of incorporation issued by the registrar on registration of a company.
The certificate of incorporation is conclusive evidence that the requirements of the Act as to registration have been met, that the company has been registered, and where relevant that the company has been registered as a limited company or a public company. The certificate will also state, where the company is limited, whether it is limited by shares or by guarantee.
This section replaces section 13 3 to 5 of the Act. It provides, amongst other things, that the subscribers to the memorandum, together with such other persons as may from time to time become members of a company, are a body corporate by the name stated in the certificate of incorporation and, in the case of a company having a share capital, that the subscribers to the memorandum become holders of the shares specified in the statement of capital and initial shareholdings.
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This means that on registration a company becomes a legal person in its own right, which is distinct from the people who own it the members and the people who manage it the directors. It replaces similar provisions in the Act. The definition is expressed to be non-exhaustive. For example the certificate of incorporation summarises key information pertaining to the company such as whether it is public or private limited — see section At present, companies may divide their constitutional rules between their memoranda and their articles, with the terms of their memoranda being capable of being altered after formation in some respects but not in others.
This section replaces section 7 1 and 3 and section of the Act. It carries forward the requirement that all registered companies must have articles. As now, the articles must be contained in a single document and must be divided into consecutively numbered paragraphs. This principle will also apply to the articles of companies which are formed and registered under the Act. These two sections replace section 8 of the Act. For existing companies, there will be no change. The principle is maintained that the version of the model articles that was in force at the time that a particular company was originally registered will continue to apply to that company.
Existing companies will be free to adopt, wholly or in part, the model articles prescribed for companies of a particular description formed under the Act see subsection 3 of section For example, an existing private company limited by shares may prefer to adopt the new model articles for private companies limited by shares, or indeed the new model articles for public companies formed under the Act with or without modification in place of the current Table A articles, or previous articles of its own devising.
As with Table A, the adoption of model articles by companies formed under the Act will be entirely a matter for individual companies. They will also be able to adopt the provisions of model articles by reference. This is a common practice, which enables a company that wishes to incorporate specific provisions of the model articles into its own registered articles to do this without having to copy out the provision in question. Companies have found such techniques useful in the past and they will continue to be permitted. This restates section 9 1 of the Act. Subsections 2 and 3 make it clear that this general principle is subject to certain rules in charities legislation about the ability of companies which are charities to change their constitutions and the effects which such changes have.
There are separate but broadly similar rules for English and Welsh, Scottish and Northern Irish charities. Section 22 is a new provision. It replaces the current practice provided for in section 17 2 b of the Act , whereby companies are able to entrench certain elements of their constitution by putting them in their memoranda and providing that they cannot be altered. This section permits companies to provide in their articles that specified provisions may be amended or repealed only if conditions are met that are more restrictive than would apply in the case of a special resolution.
As a result of this section companies formed under the Act will not be permitted to provide in their articles that an entrenched provision can never be repealed or amended. There is a corresponding requirement as to notice where the company amends its articles so as to remove a provision for entrenchment or where the articles are altered by order of a court or other authority so as to remove a provision for entrenchment or any other restriction on, or any exclusion of, the power of the company to amend its articles.
This is a new provision. This section restates section 16 of the Act. A company formed under the Act will not be able to or need to alter its memorandum. This section retains the principle that a member of a company is not bound by any alteration made to the articles subsequent to his becoming a member if the alteration has the effect of increasing his liability to the company or requires him to take more shares in the company. A member may however give his written consent to such an alteration and, where he does, he will be bound by it.
The central registers are those kept by the registrars of companies for England and Wales, Scotland and Northern Ireland. This section replaces equivalent provisions in section 18 2 and 3 of the Act and Schedule 24 to that Act. Where a company fails to comply with the provisions of this section, the company and every officer of the company who is in default commits an offence. The penalty for this offence is set out in subsection 4. It gives the registrar a means of ensuring that companies comply with the obligation set out in section 26 without having to resort to criminal proceedings.
However, the offence of failing to file amended articles is retained: see of section 26 3. Where the registrar becomes aware of any default in complying with section 26 or any similar provision of another enactment that was in force at the time of the default, for example, section 18 2 of the Act , she may give notice to the company requiring it to rectify the breach within 28 days.
Where the company complies with the notice, the company will avoid prosecution for its initial failure to comply. For companies formed under the Act, the memorandum will contain limited information evidencing the intention of the founder members to form a company. The memoranda of existing companies, on the other hand, will contain key constitutional information of a type which will in future be set out in the articles or provided to the registrar in another format see Part 2. This Chapter replaces equivalent provisions in the Act on the registration of resolutions and agreements and on making these available to members.
This section replaces section 4 and 4A of the Act. It lists the resolutions and agreements that must be forwarded to the registrar for registration see section 30 and made available to members on request see section This section restates section 1 , 5 and 7 of the Act and Schedule 24 to that Act. Where a company passes a resolution or enters into an agreement of the type listed in section 29, it must forward a copy of the resolution or agreement to the registrar for registration within 15 days of the date on which the resolution was passed.
If a company fails to do this, the company, and every officer of it who is in default, commits an offence. For the penalty, see subsection 3. Under the Act all companies are required to have objects and these objects are required to be specified in the memorandum. The Act also makes specific provision for where a company states its objects to be to carry on business as a general commercial company see section 3A of the Act.
Instead of companies being required to specify their objects, companies will have unrestricted objects unless the objects are specifically restricted by the articles see subsection 1. This will mean that unless a company makes a deliberate choice to restrict its objects, the objects will have no bearing on what it can do.
Some companies will continue to restrict their objects. Companies that are charities will need to restrict their objects under charities legislation and some community interest companies may also choose to do so. The registrar is to register that notice, and the alteration does not take effect until it has been so registered. Subsection 5 makes equivalent provision for Scotland. These provisions impose additional requirements in the case of companies which are charities when changing certain aspects of their constitutions, including their objects.
This section replaces section 19 of the Act and Schedule 24 to that Act. This information must in future be provided to the members on request free of charge. Where a company fails to comply with the provisions of this section, every officer of the company who is in default commits an offence. For the penalty for this offence, see subsection 4. Subsection 1 of this section replaces section 14 1 of the Act. This reflects the new division of formation and constitutional information between the memorandum, articles and other constitutional documents noted above.
Subsection 2 replaces section 14 2 of the Act. It provides that amounts which a member of a company is obliged to pay to it under its constitution are debts due to the company. In England and Wales and Northern Ireland, such debts are ordinary contract debts. This section replaces section 18 of the Act and Schedule 24 to that Act. However, there is a balance to be struck between maintaining transparency on the one hand and inundating the registrar and searchers with mountains of paper which will be of little practical use to persons searching the public register and whose contents are generally available in any event.
The section therefore does not require companies to send copies of most public general Acts which alter their articles such as Companies Acts or new commonhold legislation to the registrar. The procedural rules for sending such legislation to the registrar, and the penalties for non-compliance with them, are as for section It obliges companies to give notice of such alterations to the registrar, and to supply a copy of the articles, or the resolution or agreement in question, as altered to the registrar.
This section replaces section 2 , 6 and 7 of the Act and Schedule 24 to that Act. This section restates section 15 1 of the Act. It provides that a company limited by guarantee without a share capital cannot, by means of a provision in its articles or a resolution of its members, confer on any person a right to participate in its divisible profits otherwise than as a member.
Under section 7 it will be possible for a single person to form any type of company. This section provides that in future any enactment or rule of law that is applicable to companies formed by two or more persons or having two or more members applies with any necessary modifications to companies formed with one member or having only one person as a member. It replaces the present section 35 1 and 4 of the Act, which made similar provision for restrictions of capacity contained in the memorandum.
The section does not contain provision corresponding to section 35 2 and 3 of the Act. Subsection 2 indicates that the section, like section 35 of the Act, is modified in its application to charities. This section provides safeguards for a person dealing with a company in good faith and restates section 35A and 35B of the Act. This means that a third party dealing with a company in good faith need not concern itself about whether a company is acting within its constitution.
Subsection 2 b i of the section replaces part of section 35B of the Act: an external party is not bound to enquire whether there are any limitations on the power of the directors. The first limb of section 35B which refers to the memorandum has not been carried forward. Under the Act, the objects no longer affect the company's capacity to act and so this limb is not necessary. This section restates section A of the Act. Instead, the transaction will be voidable at the instance of the company. As now, under subsection 4 , a transaction will cease to be voidable in certain circumstances, for example, if restitution is no longer possible.
This section restates section 65 of the Charities Act It is a qualification of the rules in sections 39 and It provides that the protection afforded to an external party by sections 39 and 40 will not apply where the company in question is a charity, unless:. Corresponding provisions for charities that are registered in Scotland can be found in section of the Companies Act see subsection 5.
This section restates the provisions of section 36 of the Act. This section largely restates section 36A of the Act. It provides that a company may execute a document under the law of England and Wales or Northern Ireland by affixing the company seal or by signature by two directors or by one director and a secretary or joint-secretary or for the first time by a single director if that signature is witnessed and attested. This section replaces the provisions of sections 36A 3 and of the Act.
It permits but does not require a company to have a common seal. The only change is to extend the application for the purposes of the law of Northern Ireland. This section replaces section 38 of the Act. The Act does not require the appointment of the attorney to be by deed nor does it say anything about deeds executed on behalf of the company in the United Kingdom. This section provides that a company may appoint, under the law of England and Wales or Northern Ireland, attorneys to execute deeds or other documents on its behalf, and that documents executed in this manner, whether in the UK or abroad, have effect as if executed by the company.
It also makes clear that the method for a company appointing an attorney is by instrument executed as a deed, which is the same method by which an individual appoints an attorney. This section restates section 36B of the Act. It makes clear that no seal is required regardless of any other statutory provision. The only change is the addition of subsection 1 which makes clear that this section forms part of the law of Scotland only. This section replaces section 39 of the Act. It sets out the circumstances and manner in which a company may use its common seal outside the UK.
This section restates section 40 1 of the Act. It enables a company that has a common seal to have an official seal for sealing securities issued by the company and for sealing documents creating or evidencing securities so issued. This section restates section 36C of the Act. A company is not bound by a contract purportedly made on its behalf before it came into existence unless the obligations are novated, i. Novation may be express or implied. This section restates section 37 of the Act.
A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person, or to its bearer. A promissory note is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person or to its bearer.
This Part applies to the name under which a company is registered, sometimes called the "corporate name". This Part regulates the choice of name. The rules are primarily intended to ensure that third parties are not misled. While there is no requirement for a company to use its registered name in the course of business, this Part also requires a company to disclose its name in specified circumstances. Sections 70 to 74 provide for the appointment of adjudicators in cases where there is dispute over the registering of a company name. Section 71 safeguards the independence of the adjudicators and section 74 provides a right of appeal to the court.
This section replaces section 26 1 d and e of the Act. It retains the existing prohibition of companies registering names that cannot be used without commission of an offence and of those that are offensive. This section replaces section 26 2 a of the Act. A new power allows similar protection to be extended to other public authorities. This section replaces sections 26 2 b , 29 1 a and 29 6 of the Act. Subsection 1 requires prior approval for the adoption of a name that includes words or expressions specified in regulations.
Subsection 2 provides for the procedure to be used for making the regulations. This section replaces section 29 1 b and 2 and 3 of the Act. It provides power for the Secretary of State to specify whose view must be sought when seeking approval for a name. Regulations under the new power would be able to replicate this. They could also require the approval of, say, the House Authorities for names suggesting a connection with Parliament.
When a request is made under section 56 in connection with the registration or the change of name of a company, the registrar must be sent a statement that a request has been made, and a copy of the response see subsections 3 and 4. But the registrar must no make the response available for public inspections see section 1 a. This section replaces section 25 1 of the Act and also section 27 4 b and d in its application to public limited companies.
It brings together in a single provision all the alternative statutory indicators of legal status that must be used by a public company as part of its registered name, i. This section does not apply to community interest companies. This section replaces section 25 2 of the Act and also section 27 4 a and c in its application to private limited companies. It brings together in a single provision all the alternative statutory indicators of legal status that must be used by a private company as part of its registered name, i.
Certain companies are exempt see section These sections replace section 30 of the Act. Exempt companies are also exempt under the Act from some of the requirements regarding publication of their name but they still have to disclose their limited status in correspondence. Those currently exempt are those with a licence granted under section 19 of the Companies Act which have delivered a statutory declaration to the Registrar that the company complies with the requirements for the exemption.
These requirements are, in effect, that the company is non-profit-making and its objects are the promotion of commerce, art, science, education, religion, charity or any profession. Section 60 continues the exemption for companies already exempt so long as they continue to meet the conditions and until they change their registered name. It also provides an exemption for charities and allows the Secretary of State to make regulations exempting other companies.
Only private companies may be exempt. Sections 61 and 62 , which replace section 30 2 and 3 , specify the conditions that must be met for a company currently exempt to continue to qualify for the exemption: its objects must continue to satisfy the criteria for their exemption and its articles must both preclude distributions of dividends to its members and also, in the event of it being wound up, require its assets to be passed to a body with similar objects.
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For companies limited by shares benefiting from an exemption under the Act or its Northern Irish equivalent , there is a new requirement that the articles prevent a distribution of capital. This is linked to the change in section 63 4 see below. This section replaces section 31 1 and 5. It prohibits a company benefiting from an exemption under the Act or the Act or their Northern Irish equivalents from changing its articles in such a way that it no longer meets the requirements for the exemption.
Many companies with an exemption under the Act or its Northern Irish equivalent were made to include a provision in their memoranda preventing an amendment to their memoranda or articles without the consent of the Board of Trade there were a number of variations on this theme. Subsections 4 and 5 make provision to remove this administrative burden. This section replaces section 31 2 to 6. This section replaces section 26 1 a , b , bb and bbb of the Act.
These paragraphs restrict the use of various words, expressions and abbreviations that are indicators of legal status for various types of commercial entity, e. The only words etc that can be specified in the regulations are those associated with a particular type of company or form or organisation or those confusingly similar to such words and expressions. This section also provides power to require or prohibit the statutory indicators of legal status being used in conjunction with specified other words.
This section replaces section 26 1 c and 3 of the Act. Subsections 2 and 3 provide power for the Secretary of State to make regulations to replace the detailed rules presently contained in section 26 3 of the Act as to:. The section provides power also to treat as the same:. The prohibition of names that, under these rules, are the same as an existing name will not be discretionary. The section is intended to cover two circumstances.
First, any delay in the entry on the index of company names of new names of entities that are not UK companies. Companies House enter all names immediately but there may be delays outside their control. If the name had already been taken by the other entity before the company adopted it, then the Secretary of State will direct the company to change its name.
Second, the visual difference between the new name and an existing name being so small that third parties are likely to be confused by the simultaneous appearance of both names on the index of company names. Subsections 2 and 3 provide power to make regulations, corresponding to that provided by section 66, to replace the detailed rules presently contained in section 26 3 of the Act as to:. This section replaces section 28 4 and 5 of the Act as they apply to section 28 2. It makes failure by the company to comply an offence.
Sections 69 to 74 are new provisions. There is list of circumstances raising a presumption that a name was adopted legitimately. The respondent must show that one of these applies, or otherwise that he acted in good faith or that the interests of the applicant are not significantly affected for example, where the applicant has hardly used the name at all.
The objection will be upheld if the respondent cannot do so, or if the objector can show that the name was registered either to obtain money from him or to prevent him using the name. This section provides power for the Secretary of State to appoint company names adjudicators and their staff and to finance their activities. One of the adjudicators is to be appointed Chief Adjudicator. This section provides the Secretary of State with power to make rules for the proceedings before a company names adjudicator.
The list of matters which the rules may cover is not exhaustive. It also enables the rule to confer on the Chief Adjudicator power to determine any matter that could be the subject of the rules made under this power. This section requires the adjudicator to publish his decision and his reasons for it, possibly through a website. The publication must be within 90 days of the decision. If an objection made under section 69 is upheld, then the adjudicator is to direct the company with the offending name to change its name to one that does not similarly offend.
A deadline must be set for the change. If the offending name is not changed, then the adjudicator will determine a new name for the company. This section enables appeal to a court against the decision of the company names adjudicator. This section replaces section 28 3 of the Act and, insofar as they support that subsection, section 28 4 and 5. It provides power for the Secretary of State to direct a company to change its name within a specified period in two circumstances. First, if misleading information was given to enable the adoption of the name.
Second, if an undertaking or assurance given to enable the adoption of the name has not been fulfilled. The direction can only be made up to five years after the adoption of the name. It is an offence not to comply with the direction. This section replaces section 32 of the Act. It provides power for the Secretary of State to direct a company to change its name, regardless of how long the company has had the name, in the specified circumstances. The company may appeal to the court, who may either confirm the direction or set it aside.
The section also sets time limits for compliance with the direction 6 weeks and the application to the court 3 weeks. If the court confirms the direction, it specifies the deadline for compliance. This section replaces section 28 1 of the Act. Under the existing provision, companies can only change their names:. This section also provides for the following means:. It requires the company to notify the registrar of a change of name when it has been agreed by special resolution. This requirement is in addition to the obligation under Chapter 3 of Part 3 to forward a copy of the special resolution to the registrar.
Subsections 2 and 3 address the particular situation where a company has passed a special resolution to change its name but the change is not to take place until some other event has occurred e. The notice of change of name must say that the change is conditional and whether the event has occurred. If the event has not yet occurred, the registrar will not act on the notice to change the name until she has received a second notice stating that the specified event has occurred.
The registrar may rely on that statement without further evidence. This section is a new provision, supplementing the new provision section 77 1 b whereby a company may change its name by any means provided for in its articles. Subsection 2 ensures the registrar may rely on that statement without further evidence. Subsection 3 provides for the company to be issued with a certificate of incorporation with the new name.
This section, which replaces sections 28 6 and 32 5 in part and, in total, section 28 7 of the Act, provides that the new name is effective as soon as the altered certificate of incorporation is issued. This section replaces sections 1 , 1 , and 1 and 2 of the Act and, insofar as it applies to companies, section 4 1 of the Business Names Act It provides power for the Secretary of State to make regulations requiring every company:.
This section replaces section 5 of the Business Names Act , so far as it applies to companies. This section replaces sections 2 , 2 and 3 and 5 of the Act and, insofar as it applies to companies, part of section 7 of the Business Names Act It makes it an offence not to comply with the requirements, to be specified in regulations under section 82, for every company to disclose its name and specified other information. The permitted differences are the case of the letters, the use of punctuation, accents, etc and formatting.
However the differences must not result in there being a risk of confusion. This section restates section 1 of the Act. It requires every company to have a registered office and provides for that office to be an address to which communications and notices may be sent. Section provides that the service of a document on a company is effective if it is sent to its registered office.
This section restates section 3 to 6 of the provisions of the Act. It provides the means by which a company may change the address of its registered office. This section provides a definition of a Welsh company. A company can be set up as a Welsh company by delivering to the registrar a statement on formation that its registered office is to be situated in Wales see section 9 2 b.
As recommended by the CLR, subsection 3 provides a mechanism whereby a company can cease to be a Welsh company i. This is new. At present, while a company may choose to restrict the address of its registered office to Wales on formation or subsequently by special resolution, it is not possible under the Act for a Welsh company to drop the restriction so that its registered office address can be changed to anywhere in England and Wales. Welsh companies may deliver documents to the registrar in Welsh see section Welsh companies may also end their company name with Welsh versions of the statutory indicators of legal status.
When a company ceases to be a Welsh company using the procedure under this section, it may no longer take advantage of these provisions. Where a company passes a special resolution under subsection 2 or 3 and so becomes or ceases to be Welsh company subsection 4 provides that the registrar will amend the register and issue the company with a new certificate of incorporation.
This Part of the Act is about the re-registration of companies. It replaces equivalent provisions in Part 2 of the Act. There are some substantive changes as well as amendments reflecting the new provisions of the Act about registration which are carried through to the re-registration provisions. This section provides for various ways under the Act by which a company may alter its status.
This section restates section 43 1 and 2 , and section 48 of the Act. It enables a private company whether limited or unlimited to re-register as a public company providing that certain conditions are met. These conditions are set out in subsections 2 to 4. This will be particularly important for private companies formed under the Act who are using the model articles: in particular, the new model articles for private companies limited by shares formed under the Act will be written with such companies in mind and are unlikely to be suitable for use by a newly re-registered public company — see notes on sections 19 and As now see section 48 of the Act , an unlimited private company with a share capital will be able to re-register as a public company and this is reflected in subsection 4 of this section.
Subsection 2 e retains the requirement that a private company may not re-register as a public company if it has previously re-registered as an unlimited company. The intention behind this provision is that a company should not be able to enjoy the benefits of limited liability or avoid the obligations that are attached to this, for example, the increased reporting requirements, by continually swapping from limited to unlimited status.
This section restates sections 45, 47 3 and 48 5 to 7 of the Act. It sets out the requirements as to share capital of a company that it is proposing to re-register as a public company. Subsection 5 of this section replaces section 47 3 of the Act. This section restates section 43 3 b , c and e , and 4 , and section 46 of the Act.
This section restates section 44 of the Act. As now, where there has been an allotment of shares for non-cash consideration between the date of the balance sheet required under section 92 and the date that the company passed the resolution to re-register as a public company, the registrar will not entertain an application for re-registration unless the consideration for the allotment has been valued in accordance with section This section restates sections 43 3 a to e and 47 2 of the Act. It prescribes the contents of the application for re-registration where a private company is proposing to re-register as public.
There is one important change, which is required as a result of the abolition of the current requirement for private companies to have a company secretary — see section The contents of this statement are prescribed in section The application for re-registration must be accompanied by a statement of compliance — see section 90 1 c ii — which replaces the present requirement for a statutory declaration or its electronic equivalent , contained in subsections 43 3 e and 3A of the Act, with a requirement to make this statement see note on section This section is a new provision, which is required as a result of the abolition of the requirement for private companies to have a company secretary — see section Where a private company is proposing to re-register as a public company and the company does not already have a company secretary, the application for re-registration must include details of the person or persons who will act as company secretary or joint secretaries on re-registration.
The statement of proposed secretary must also contain a consent, given by the person or each of the persons named in the statement, to act as company secretary or joint secretaries. If all the partners in a firm are to be joint secretaries, one partner in the firm may give consent to act on behalf of all of the partners. This section replaces section 47 of the Act. As now, where the registrar is satisfied that a company is entitled to be re-registered as a public company, she will issue a new certificate of incorporation which must state that it is being issued on the re-registration of the company.
As now, the certificate of incorporation on re-registration is conclusive evidence that the company is now a public company and that the requirements of the Act as regards re-registration have been met. This section replaces section 53 of the Act. It enables a public company to re-register as a private limited company if the conditions specified in subsection 2 are met.
The conditions are the same as those which are presently set out in section 53 but there are two important changes:. Consistent with the approach taken elsewhere in the Act, for example the sections on the re-registration of a private company as public, subsection 1 c ii of this section introduces a new requirement for a statement of compliance see note on section Subsection 2 introduces new provisions which enable the registrar to process an application for the re-registration of a company from public to private limited within the day period during which dissenting members may apply to the court, under section 98, for an order cancelling the resolution for re-registration, providing that she is satisfied that such an application cannot be made.
As now, the company must make such changes to its name and articles as are necessary in connection with it becoming a private company limited by shares or, as the case may be, a private company limited by guarantee. This section restates section 54 1 to 3 and 5 to 6 of the Act. Such an application to the court must be made within 28 days of the resolution to re-register being passed and on hearing the application the court may confirm or cancel the resolution or make such other order as it thinks fit.
This section replaces section 54 4 7 and 10 of the Act. It makes it clear that, as now, where an application is made to the court under section 98 that is, to cancel a resolution for re-registration as a private limited company , the company must immediately give notice to the registrar. Similarly, where the court has made an order in connection with such an application, the company must deliver a copy of that order to the registrar within 15 days of the order being made or such longer time as the court may direct.
Subsection 1 of this section is a new provision which requires the dissenting members, on making an application to court seeking to cancel the resolution for re-registration from public to private, to give notice direct to the registrar. This ensures that the registrar is aware of any applications which have been made under section 98 and therefore will enable the registrar to process the application for re-registration without further delay where she is satisfied that no application to court may be made — see note on section Subsection 4 carries forward the offence in section 54 10 of the Act.
Where the company fails to give notice to the registrar or fails to deliver a copy of the order made by the court under section 98 within the prescribed time limits see subsections 2 and 3 , the company and every officer of the company who is in default commits an offence. The penalty for this offence is set out in subsection 5. This section replaces section 53 1 b of the Act and contains new provisions. Consistent with the approach taken in the Act with other forms of re-registration, in future the application for re-registration as a private limited company must be accompanied by a statement of compliance — see note on section There is currently no requirement for a statutory declaration or electronic equivalent where a public company re-registers as a private limited company.
This section restates section 55 of the Act. As now, where the registrar is satisfied that a company is entitled to be re-registered as a private limited company, she will issue a new certificate of incorporation which must state that it is being issued on the re-registration of the company. On the issue of a new certificate of incorporation under this section, the company becomes a private limited company and the change to its name and any amendments that were required to be made to the articles take effect.
As now, the certificate of incorporation on re-registration issued under this section is conclusive evidence that the company is now a private limited company and that the requirements of the Act as regards re-registration have been met. This section replaces section 49, of the Act. As now, this section permits a private company that is limited by shares or, as the case may be, by guarantee, to re-register as an unlimited private company, providing that certain conditions are met see subsection 2 and all of the members have given their assent to the company being so re-registered.
Where a member is bankrupt, assent may be given by his trustee in bankruptcy to the exclusion of the member in question. As now, a company may not re-register as an unlimited company, if it has previously been re-registered as limited having previously been unlimited or as unlimited having previously been limited. The application for re-registration as an unlimited company must be accompanied by a statement of compliance see note on section This section replaces section 49 8 and 8A of the Act. The current requirement for a statutory declaration made by the directors on application for re-registration as an unlimited company is replaced by a requirement for a statement of compliance.
Unlike other statements of compliance made under the Act see, for example, section 13 the statement of compliance made on application for re-registration as an unlimited company must contain a statement made by the directors confirming that:. This section restates section 50 of the Act. As now, where the registrar is satisfied that a company is entitled to be re-registered as an unlimited company, she will issue a new certificate of incorporation which must state that it is being issued on the re-registration of the company. On the issue of a new certificate of incorporation under this section, the company becomes an unlimited company and the change to its name and any amendments that were required to be made to the articles take effect.
As now, the certificate of incorporation on re-registration is conclusive evidence that the company is now an unlimited company and that the requirements of the Act as regards re-registration have been met. This section replaces section 51 1 to 3 of the Act. As now, this section permits an unlimited company to re-register as a private limited company if certain conditions are met see subsection 2. As is the case under section 51 6 of the Act, this section does not permit the re-registration of an unlimited company as a public company this section provides for the re-registration of an unlimited company as a private limited company.
There is a new requirement for a statement of compliance see note on section This section replaces section 51 5 of the Act and contains new provisions. It should be noted that there is no requirement for a statement of capital and initial shareholdings where the company is to be limited by shares. This is unnecessary because the company will be required to make a return of allotments to the registrar, under section as soon as it allots shares subsequent to its registration and the return must be accompanied by a statement of capital.
This section restates section 52 of the Act. As now, it provides that, where the registrar is satisfied that a company is entitled to be re-registered as a private company, she will issue a new certificate of incorporation which must state that it is being issued on the re-registration of the company. This section is a new provision which requires a company that has re-registered from unlimited having a share capital to private limited by shares to file a statement of capital with the registrar in certain circumstances.
The provision is necessary because unlimited companies are required to provide a statement of capital to the registrar in a limited number of circumstances only: in particular, where the company has a share capital on formation see section 10 or where an unlimited company having a share capital makes an annual return to the registrar under section The requirement for a statement of capital in this section puts companies which have re-registered as private limited by shares under section on the same footing as other companies limited by shares on the register and ensures that the information on the public register is up-to-date.
The conditions specified in subsection 2 must be met and all of the members must give their assent to the company being so re-registered. A public company may not re-register as an unlimited private company under this section if it has previously been re-registered as limited or as unlimited see subsection 2. The intention behind this subsection which is based on the provision in subsection 2 e of section 90 is that a company should not be able to enjoy the benefits of limited liability or avoid the obligations that are attached to this, for example, the increased reporting requirements, by continually swapping from limited to unlimited status.
There is a requirement for a statement of compliance see note on section 13 and, in contrast to the statements of compliance that are required elsewhere in the Act, the statement of compliance that is required here must contain a statement made by the directors confirming that:.
This section is a new provision which requires the registrar to issue a new certificate of incorporation is she is satisfied that a public company is entitled to register as private and unlimited. On the issue of a new certificate of incorporation which must state that it is being issued on the re-registration of the company , the company becomes a private unlimited company and the change to its name and any amendments that were made to the articles take effect.
The certificate of incorporation on re-registration is conclusive evidence that the company is now a private unlimited company and that the requirements of the Act as regards re-registration have been met. This section restates section 22 of the Act. There are additional words to make it clear that the subscribers to the memorandum become members on registration of the company, even if the company fails to enter their names in the register of members.
This section restates section 1 to 5 of the Act. The only new provision is subsection 5 which makes it clear that, for the purposes of this Chapter, joint holders of a share fall to be treated as a single member, so the register need only show a single address although all their names must be stated in the register. Currently, the register of members is required to be kept at the registered office of the company, except that if the company has appointed a third party to maintain or update the register, it may be kept at the office where that work is done, subject to that office being in the jurisdiction where the company is registered.
Under the Act, it is immaterial where the work of compiling or updating the register is carried out. There is no change in the obligation of a company with more than 50 members to maintain an index of the names of the members which the company is obliged to do unless the register itself is kept in such a form as to constitute an index. Under section , the obligation to make the register available for inspection is subject to an exception when the register is closed under section of the Act. The power to close the register has not been carried forward in the Act and so the obligation in subsection 1 is absolute.
This section follows this recommendation. It modifies the rights of inspection and to be provided with copies of the register of members and its index. Section provides power for the Secretary of State to make regulations about the inspection of records and provision of copies and to set fees. Subsections 3 and 4 , which are new, require those seeking to inspect or to be provided with a copy of the register of members to provide their names and addresses, the purpose for which the information will be used, and, if the access is sought on behalf of others, similar information for them.
This section provides a procedure by which the company can refer the matter to the court if it thinks that the request may not be for a proper purpose. It replaces the day deadline for compliance with a request with a 5-day period within which the company must either comply with the request or apply to the court for relief from the obligation.
If the company opts for the latter, then subsections 3 , 4 and 5 apply. Under subsection 4 , the court may also require the company not to comply with other requests made requests for similar purposes. If the court does not make an order under subsection 3 , or the proceedings are discontinued, then, under subsection 5 , the company must immediately comply with the request. See below for a discussion of how to deal with such requests. That means that in making an initial report of suspected abuse to a CPS or other designated agency, the mandated reporter should provide only the basic information required by the State mandatory reporting law.
The counselor may give her name and the name of the program, and if the law requires it, she must. No other information should be disclosed without the client's written consent. Please note that these guidelines are an explanation of current Federal and State laws regarding client confidentiality for substance abuse treatment programs.
They are meant to help reduce legal complications that could interfere with a client's treatment--or a program's operation. They are not meant to imply or encourage an adversarial relationship with CPS agencies. Ongoing collaboration is important and allowed when appropriate consent forms are signed. With more than 50 percent of child protective cases involving substance abuse, CPS agencies are dependent on the expertise of the treatment agencies.
Agencies providing substance abuse treatment should develop a protocol to handle legal requirements. For example, an agency may have a protocol that requires the counselor to discuss the case in question with a supervisor. If they decide the case is reportable, then the supervisor discusses it with the clinical director. If more information is sought, such as by subpoena, the director would contact a lawyer.
Orientation for new staff members should include the agency's reporting policies and procedures. It is recommended that these policies include provisions requiring staff members to inform their supervisor or appropriate program personnel whenever they make a report, as well as the need to consult with their supervisor whenever they have concerns regarding the need to report. Many substance abuse treatment agencies have found it useful to designate a capable member of the staff to Handle all requests for information from outside individuals or organizations when no proper consent form exists to authorize a release of information Keep current with developments in the area of child abuse and neglect, including court decisions that clarify what conditions are reportable and how reports should be made Develop and update a list of resources the agency can consult when difficult questions arise e.
A list of other potential sources of assistance appears in Figure Sources to be consulted only after reviewing confidentiality rules A clinical supervisor or a member of the treatment team Another peer The treatment program's legal more Counselors may be concerned that compliance with the mandatory reporting law will damage the client-counselor relationship or trigger relapse. A recent study shows that neither is likely to occur: Most clients stay in treatment after a report, and many are able to overcome the negative feelings that often result Steinberg et al.
There are ways to limit the potential damage to the therapeutic relationship. The first is to inform the client about the mandatory reporting law at the time of admission Watson and Levine, This practice is actually required by the Federal confidentiality regulations. A second way to limit damage is to provide the client an opportunity to self-report.
Self-reporting "affords the individual an opportunity to assume responsibility for his or her own actions and allows for at least some control in what otherwise might be a powerless situation" Kalichman, , p. If the client makes the report from the counselor's office, the counselor can provide appropriate support. Counselors should be aware, however, that although this might preserve the therapeutic relationship, it may not fulfill the counselor's statutorily imposed duty to make a report.
Sometimes it is possible to minimize damage to the relationship by completing the report both oral and written in the client's presence. If there is imminent risk to a child, the counselor may not have time to engage the parent in the process. For example, if a counselor learns that the client has scalded his child and tied him to the bed, it would be appropriate to contact a CPS agency immediately. Similarly, if there is a risk that the client will continue his behavior and seek to cover his tracks, the counselor would probably not involve him in the report or inform him until after it has been made.
Although counselors may sometimes be tempted to use the threat of reports to coerce clients into complying with treatment requirements, counselors must remember that the purpose of the reporting laws is to protect children-- not to provide counselors with a bargaining chip in the treatment process. Reporting may advance a client's recovery by providing an appropriate limit-setting example, increasing the parent's sense of responsibility for harmful behavior, and giving the family an opportunity to change.
Parents may be relieved after a report has been made that external control has been introduced into a situation that frightens them as much as it does the children. Reporting may also open a dialog with the client concerning family relationships and any personal history of abuse, if one exists. Whether these positive results occur appears to depend on when the report is made earlier in treatment is more likely to affect the relationship negatively , how much support the counselor offers when the report is made, and how well the counselor deals with the client's anxiety and anger Melton et al.
The law does not require mandated reporters to tell the parents that a report is being made; however, in the majority of cases, advising the client is therapeutically advisable. First, the therapist is employing clinical leverage by using authority to set a firm and necessary limit Second, if the therapist does not mention the report, there is secrecy and tension, which may result in the clients' feelings of suspicion, isolation, or betrayal. In some cases, reporting may elicit an extreme response from the clients It can be very beneficial to give clients the opportunity to make the reports themselves in the therapist's presence Peterson and Urquiza, , p.
Although the manner in which the counselor makes the report may affect the counselor-client relationship, the importance of that relationship must not override the counselor's responsibility to fulfill the statutorily imposed obligation to report when a report is necessary to protect a child.
If a client has a history of violence, the counselor must also consider her own safety when deciding how much to include the client in the reporting process. Failure to comply with statutory reporting mandates or to limit the report as required by the Federal confidentiality regulations can place the individual counselor and the counseling agency at risk. Therefore, everyone in the agency who is required by law to report suspected abuse or neglect must clearly understand when and how a report must be made and what information must be reported.
The best practice is to adopt a written policy or protocol before a case arises. Recently hired counselors should read or be given training on such policies. Reporting policies and procedures should include a reference to the State's legal requirements, including the definitions of child abuse and neglect, the categories of persons who must report, what information must be in the report, and how a report should be made and documented.
Specifically, the Consensus Panel recommends that agency policy include A statement that the agency strictly adheres to the State's mandatory reporting laws The State's definition of abuse and neglect The State law delineating when reports must be made e. A requirement that staff members who are mandated reporters consult a supervisor or team leader before calling the CPS agency to report suspected child abuse or neglect unless the situation is an emergency Some States require that the agency as well as the individual care provider make a report; moreover, consulting with a supervisor ensures that the wisest decision is made in this emotionally charged area, particularly in ambiguous or doubtful cases, and it will ensure that the agency is prepared to handle any legal issues that may subsequently arise.
A statement describing how the report must be documented in the agency's records At a minimum, documentation should include the name of person and agency to whom a telephone call was made, the date and time of the call, the information provided, a copy of the written confirmation, and a notation of whether and when the parent was notified of the report. Guidelines describing when and how the client will be notified, including a description of the circumstances under which a parent should not be notified because of danger to the child A procedure for review of all cases and of issues that arise after reporting Routine review will ensure that any problems, whether of a procedural or therapeutic nature, will be addressed expeditiously.
A requirement that orientation for all new staff include the agency's reporting policies and procedures and a statement that the agency will provide ongoing training in this area. All 50 States and the District of Columbia have statutes that protect children from abuse and neglect by their parents or others. There are criminal statutes prohibiting certain acts or failures to act , violation of which may lead to imprisonment.
There are also civil statutes that prohibit abuse and neglect. If these statutes are violated, the court may impose requirements that parents accept certain kinds of help such as substance abuse treatment, parenting classes, or anger management training , that their children be removed from the home, or that their parental rights be terminated.
Most States define abuse as an act or failure to act that results in nonaccidental physical injury or sexual abuse of a child. Neglect generally includes the denial of adequate food, shelter, supervision, clothing, or medical care when such resources or services are available.
As noted in Chapter 1 , each State defines abuse and neglect differently, and the conditions considered to be neglect or abuse in one State may not be the same in others. Because State law often requires that treatment providers report suspected abuse and neglect, treatment staff should become familiar with their State's definitions of abuse and neglect. Staff can contact the State's CPS agency for information on current laws.
If the abuse occurred in another State, or if the perpetrator is currently living in another State, it is wise to check on the laws in the other State to ensure compliance. At times, there may be a need to report in both States. In some cases, the CPS agency can be consulted regarding whether or not a report must be made in a particular situation without divulging confidential i. Consultation with the CPS agency must be done with great care, and this communication can be noted in the client's chart. Although each State's laws are different, the following conditions are reportable in most States: The child has been seriously physically injured by a parent or other adult by other than accidental means.
The child appears injured or ill to the point that a reasonable person would seek medical attention, but the parent has not sought medical attention, refuses to consider it, or fails to follow medical advice, putting the child at risk. An adult has sexually touched or made the child sexually touch the adult , abused, or exploited the child. The child is not registered for or attending school, and the parent refuses to remedy the situation home schooling must be adequately documented.
Although the behaviors outlined above are the most blatant examples of child abuse or neglect, other parental behaviors or practices may put children at risk. For example, the following may also constitute child abuse or neglect: Leaving a young child alone and unsupervised Inappropriate punishment that puts a child at risk e.
Whether behaviors like these are reportable depends, in part, on how State statutes define abuse and neglect, the seriousness of the behavior or incident, its impact on the child, and the counselor's perception of the client's overall behavior with the child and of the client's willingness to correct inappropriate behavior.
The difficulty for counselors is that substance abusers are often the products of poor parenting themselves and many have had little or no exposure to appropriate parenting behavior Whitfield, Without a reasonable model of nurturing behavior, they may simply deal with their children in the same inappropriate ways they were treated. They may have no intention of harming their children and no notion that they are putting their children at risk.
Because of these complicating factors, the decision whether to report parents who treat their children inappropriately can be rather difficult. Clearly, inappropriate child-rearing practices cannot be ignored; they are important danger signals. Yet not every inappropriate action a parent takes can--or should--be reported.
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On the other hand, counselors must keep in mind that they are required to report when they have a firm belief or a reasonable suspicion the statutory definition will vary that a child is abused or neglected as that term is defined. Their responsibility is limited to making a report; it does not include conducting an investigation to determine whether the abuse or neglect actually occurred.
That is the job of the CPS agency. There may also be timeframes within which reporting must occur, and sanctions for failure to report. If counselors are unsure of how to proceed or what is required in a murky or complex case, they should consult with a supervisor, a colleague in the treatment program, or others see Figure Of course, such consultation must be made without violating Federal confidentiality regulations.
See Appendix B for a further discussion of this issue. As this chapter advises earlier in "Developing Reporting Policies and Procedures," programs should adopt written policies governing child abuse reporting and should require counselors to consult with supervisors before making a child abuse or neglect report. Ongoing training and a thorough knowledge of community resources will help counselors determine what actions are most likely to benefit the child and whether reporting is required. The differences in the ways States define child abuse and neglect are particularly striking in the area of parental substance abuse.
In some States, parental substance abuse, by itself, may constitute child abuse or neglect. In others, something more must be shown. For example, in South Carolina, giving birth to a drug-exposed infant is a criminal offense; a conviction may send the mother to prison State v. Whitner , S. In other States, like New York, "[a] report which shows only a positive toxicology for a controlled substance [in the newborn] generally does not in and of itself prove that a child has been [neglected]" Nassau County Department of Social Services v.
Denise J. New York offers a particularly interesting approach to the question of parental substance abuse, as it distinguishes among three kinds: 1 those parents who misuse substances but not to the extent that they become intoxicated, unconscious, or their judgment is impaired; 2 those parents who misuse substances but are in treatment; and 3 those parents not in treatment who misuse substances to the extent that they become intoxicated, unconscious, or their judgment is impaired.
In New York, a CPS agency that brings a neglect proceeding against a parent who uses substances must show, at a minimum, that the parent "repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation or incompetence, or a substantial impairment of judgment or a substantial manifestation of irrationality Similarly, for a court to rule that a child is neglected because of the substance abuse of a parent who is not in treatment, the court need find only that the parent's substance abuse results in loss of self-control of his actions.
The wide variation in the way States define child abuse and neglect makes it imperative that providers be familiar with their States' statutes. Many States have employed both criminal and civil sanctions in an attempt to penalize pregnant women who use substances for the harm they may be causing the fetus.
Since until recently no existing criminal statute directly addressed prenatal injury to the fetus by a substance-using mother, criminal prosecutors have used "State statutes related to child abuse and neglect, involuntary manslaughter, prohibitions on delivery or distribution of controlled substances to minor, and pure drug use" Garrity-Rokous, , p.
By , at least 19 States and the District of Columbia charged women with felonies for substance use during pregnancy. Many courts have also disregarded sentencing guidelines and imprisoned pregnant drug users for terms long enough to ensure their infants were born drug free Garrity-Rokous, The South Carolina State Supreme Court was the first to rule that a viable fetus could be considered a "person" under child abuse laws.
In other States, however, courts have held that child endangerment laws do not apply to fetuses. In South Carolina, district attorneys were directed to treat situations in which a pregnant woman is using drugs as subject to duty-to-report provisions, placing medical personnel and counselors in legal jeopardy if they failed to inform authorities of such a pregnancy. In a related trend, judges commonly remand substance-using pregnant women who are arrested for prostitution, drug peddling, or other crimes to residential treatment centers, which are ordinarily reserved for persons with severe substance dependence.
Mothers who give birth to babies who are born harmed by or addicted to illegal substances may also face legal consequences. Child abuse and neglect laws have been passed in some States specifying that the birth of an infant who is addicted to an illegal substance constitutes a mandated reporting situation. A South Carolina woman was sentenced to a 5-year prison term for child neglect when her child was born with cocaine in his system. In a well-known Florida case, another woman was arrested and mandated into residential treatment for child abuse because of evidence of cocaine in the umbilical cord at birth.
Because a fetus is not considered a "person" in Florida, the State prosecutor had to show that the woman "delivered drugs" to the baby in the brief period before the umbilical cord was cut Garrity-Rokous, Eventually, the Florida Supreme Court overturned this conviction. Even so, there has been a movement in some States to define any maternal substance use during pregnancy as child abuse or neglect. Significant cultural and economic issues are associated with the way in which State reporting requirements are implemented. One landmark study showed that a woman who delivers a substance-dependent child is more likely to be reported if she is a woman of color Chasnoff et al.
It is worth noting that the same standards are not applied to women who use alcohol or smoke, even though the consequences may be equally--or even more--harmful for the baby. The long-term impact of fetal alcohol syndrome is far more clearly documented than that of fetal exposure to cocaine, for example. And according to at least one study, maternal alcohol abuse may be the most frequent environmental cause of mental retardation in the Western world Ray and Ksir, If counselors are aware of these trends in their jurisdiction, they will be better able to discuss the possible legal consequences with pregnant women.
At the same time, understanding the current mood in the country will allow the counselor to understand better the added stress felt by drug-abusing mothers. This pressure is a good topic to discuss with pregnant clients in substance abuse treatment. Counselors should be aware that the client's concern for her unborn child, and the self-esteem issues evoked by the situation, might help keep her in treatment--or lead to relapse. Once a professional, relative, or neighbor has made a report about a child, the State or local CPS agency is supposed to take action and investigate the complaint.
If the complaint is unfounded or unsubstantiated, it is dismissed, and there are no further consequences. If, on the other hand, an initial investigation substantiates the complaint, the CPS agency has a number of options:. The majority of child abuse or neglect reports will not result in full-fledged court cases. Of those that do result in court action, most are brought in a family court, where hearings are closed to the public and files are sealed. Only rarely will a report result in criminal charges against the parent.
Whatever is reported to the CPS agency or whatever action that agency takes, if the parent contests the charges or objects to the CPS agency's proposals, she is entitled to a hearing and to be represented by an attorney. In this country, parents may not have their children permanently removed or their parental rights terminated or be punished or be required to go into substance abuse treatment without a court proceeding. Of course, parents may find themselves coerced into agreeing to enter treatment to retain their children.
In cases where a child has been removed from a home against the parent's wishes, a hearing must be held within a specified time, or the child must be returned. The focus in any initial hearing will be placement of the child during a CPS agency investigation or during any trial. Unless the charges of child abuse or neglect are dismissed or the parent is charged with a crime and incarcerated , at some point the CPS agency will meet with the client to assess his needs and develop a service plan.
The plan should detail The steps the client must take and the terms and conditions he must meet to retain or regain custody of the children A timetable for accomplishment of each step, term, and condition A list of resources the CPS agency will make available to the family. It is the CPS agency's obligation to make every effort to assist the client in retaining or regaining custody of his children. The counselor's role can be critical for a client involved in a child abuse or neglect investigation or proceeding. Getting the client to sign a consent form allowing communication and joint service planning can be an important first step see Appendix B.
The counselor can help a client understand what is happening, help her stay focused on what needs to be accomplished, and provide support and encouragement. However, to offer the client sound assistance the counselor needs some basic information: Is this the first time the client has had a case with a CPS agency? What are the charges against the client e. What precisely is the client charged with doing or not doing? Has a child ever been removed from the client's home? Does the client have a lawyer representing him?
The counselor should ask the client to sign a consent form permitting the counselor to communicate with the lawyer. At what stage is the client's case? Has the client agreed to a service plan? Is he subject to a court order? What actions must the client take to comply with the service plan or court order? Is there a timetable? What are the likely outcomes of the proceeding and is termination of parental rights a possibility?
What is the client's view of the CPS agency and of the entire situation? Although some might think the last question strange, soliciting the client's view of the CPS agency will help to maintain the counselor-client relationship as the investigation unfolds. Clients have often had negative experiences with CPS agencies or other social service agencies that have intervened in their lives, especially if cross-cultural issues are involved.
If a counselor acts on the assumption that the client thinks a CPS agency is acting in her best interest, the counselor may well alienate the client and close the door on what could be an opportunity for developing a therapeutic alliance. In other words, if the counselor characterizes the CPS agency's intentions as beneficent and its intervention as beneficial, the client may well view the counselor as naive at best, and possibly part of the "enemy camp. Perhaps the safest approach is for the counselor to take the position that whether or not the CPS agency's intentions are benign or its intervention is welcome, it is a force with which the client must deal.
It is important, however, for the counselor to help the client move past denial, hurt, and anger into a working relationship with the CPS agency. She should not align or overidentify with the client against the CPS agency. The counselor should make it clear that his major role in this situation will be to work with the client to ensure that the client understands and complies with the CPS agency's or the court's requirements regarding substance abuse treatment.
To this end, the counselor should obtain a copy of the service plan and review it with the client. The terms and requirements of the service plan can often be integrated effectively into counseling objectives. In fact, the CPS system may have information for the treatment provider on the client's substance abuse history and other relevant clinical information. Collateral information from CPS agencies on substance abuse evaluations can be invaluable in raising the quality of the evaluation, providing accurate information, and making better treatment decisions.
For guidelines on maintaining client confidentiality and the legal requirements involved, please see Appendix B. Frequently clients do not understand the severity of their situation and may minimize or withhold information. This may be due to drug-related cognitive impairments, low IQ, naivete regarding the legal system, or the same denial and rationalization that sustained their addictions.
Service plans may include a comprehensive treatment plan involving several agencies. Some communities have established multiagency teams to coordinate support for families in crisis. In West Hawaii, for example, a multidisciplinary team is formed to assist the CPS agency worker in high-risk or complex cases, such as severe abuse that results in hospitalization. Members of the team represent the disciplines of medicine, nursing, psychology, and social work. Because more than half of reported child abuse and neglect cases involve substance abuse, a substance abuse treatment professional has recently been added to the team.
The team helps the CPS agency worker assess the extent to which further harm is likely to befall the child, gauge the family's motivation and capacity for change, and weigh the advisability of various options for protecting the child. Team members review available documentation such as case histories, school reports, and medical records in addition to contributing their own knowledge of the family in question, providing a wide range of additional support on an as-needed basis.
Pediatricians assess the medical needs and perform comprehensive abuse, neglect, and sexual abuse exams. Consultants also provide expert witness testimony for the family court. The team approach can be extremely helpful to a client or family involved in the child protective process. The team can coordinate services so that requirements, appointments, and obligations do not overwhelm the client and can reduce the number of conflicting demands the client must meet.
A team approach can be very helpful in obtaining a more complete picture of the client and the severity of the problem. A client often presents differently to various practitioners and may share different information depending on the practitioner's area of expertise and nature of the relationship with the client. The difficulty for a treatment provider is that before information may be shared with other agencies, the client must sign a consent form permitting the program to communicate freely with specified agencies. In parallel fashion, the client must have signed a consent form allowing the other agency to communicate with the substance abuse treatment provider.
Some counselors address this by having the client sign the two consent forms necessary for two-way communication and sending a copy of the appropriate version to the other agency. The other agencies must also understand that they are prohibited by Federal regulations from redisclosing any information they receive from the counselor see Appendix B. Alcohol and drug counselors working with parents during CPS agency investigations or court proceedings may find that the CPS agency and others view them as a good source of information.
It is important to keep two things in mind. First, substance abuse treatment programs and the child welfare system including both the courts and the CPS agency have different concerns, goals, and measures of success. Once the counselor has made the initial report, her concern must turn to the client's progress toward recovery. While the child protective system is also concerned with the client's recovery, its focus is on the child's safety and stability.
These differences in primary focus mean that while the alcohol and drug counselor can help the client achieve recovery and thereby successfully end the involvement of the CPS agency , she cannot change either the client or the situation. Sometimes, the treatment system's interest in the client's recovery conflicts with the CPS agency's interest in protection of and permanency planning for the child.
For example, the counselor's goal of having the client reduce his substance abuse and allowing sufficient time for that to happen may conflict with the CPS agency's goal of finding a permanent placement for a child who has been in foster care for many months.
Counselors must keep in mind that they may communicate with or respond to requests for information only when the proposed communication conforms to one of the Federal regulations' narrow exceptions permitting a disclosure. If a counselor fails to abide by Federal confidentiality rules, an unpleasant and expensive lawsuit may be brought against the program and possibly the counselor. Moreover, if word spreads that the program fails to protect information about its clients, it may have a difficult time in retaining its clients' confidence and in attracting new clients into its treatment services as well as the possibility of professional sanctions and relicensing difficulties.
Appendix B contains a full discussion of the regulations, including these exceptions. All professionals who work in the field of substance abuse treatment are aware that their clients have serious problems that may involve procuring and using illicit drugs. Abuse of such illicit substances interferes with their lawful behavior and, when they are parents, interferes with responsible parenting Magura and Laudet, Treatment providers, therefore, will often need to interact with the legal and child protective systems.
The way in which counselors interact with these agencies will vary from case to case. The counselor may have to contact a CPS agency to report a client suspected of child abuse, or the legal system may contact the counselor for information about a client's participation in a treatment program. Whatever the nature of the interaction with CPS agencies or the legal system, counselors need to be aware of their legal responsibilities.
The following subsections discuss how the counselor should deal with various agencies. In all of these circumstances, the Consensus Panel recommends that counselors 1 ask for their supervisor's guidance on what boundaries to keep, 2 consult their client, 3 use common sense, and 4 consult State law or a lawyer familiar with State law.