How domestic abuse claims can become a custody ‘tactic’
Early allegations can shift the power balance in child-contact disputes, says Douglas McConnell
In my previous article for The Scotsman, I wrote about the “race to the police station” – the rush to make the first criminal allegation when a relationship breaks down. This follow-up looks at what can happen next, and the growing use of the Domestic Abuse (Scotland) Act as a tool to gain an early advantage in child-contact and residence disputes, long before the courts have the chance to examine the criminal allegations.
I offer this perspective as a criminal solicitor rather than a family law specialist. My involvement typically begins the moment an allegation is levelled; sometimes in the raw emotional aftermath of a separation, but other times, more alarmingly, as a matter of premeditated ‘tactics’. What I see repeatedly is the Domestic Abuse (Scotland) Act being leveraged to set the tone for ensuing civil disputes. It is becoming increasingly clear that an early allegation can almost immediately shift the power balance regarding contact arrangements.
The Act is an important and necessary piece of legislation. It captures patterns of behaviour that were previously difficult to prosecute. But its breadth means that conduct arising during the turmoil of separation – such as arguments, angry messages, poorly-judged attempts at reconciliation – can fall within its scope. Once an allegation is made, it becomes a powerful factor in any subsequent child-contact discussion.
This is where the difficulty lies. When an allegation is raised, even one that is untested, uncharged, or still under investigation, the safest option for the court is obvious: restrict contact, reduce it, or pause it altogether until the criminal process concludes. For anyone looking to gain the upper hand in a contact dispute, that dynamic is hard to ignore.
But the criminal process does not move quickly. Investigations take months. Decisions on charges take months. Trials, if they happen at all, take even longer. Meanwhile, the parent accused of abuse may have little or no contact with their child. By the time the allegation is finally resolved, whether by no proceedings, acquittal, or conviction, the relationship between parent and child might have changed in ways that are difficult to repair.
That change becomes the new argument: that the child has now “settled” into a reduced pattern of contact, and that restoring the previous relationship would be disruptive and not in their best interests. What began as a temporary precaution becomes, almost by default, the long-term arrangement. In effect, the allegation, not the evidence, has already achieved its purpose.
This is the concern. Not that the Act exists but that its tactical use can shape the entire trajectory of a child’s relationship with a parent before the facts have been examined. A law designed to protect is, in some cases, being used to secure a strategic advantage in the civil arena.
If my first article focused on the race to the police station, this one addresses the next concern: the growing reality that allegations under the Domestic Abuse (Scotland) Act are being used as a strategic tool to steer child-contact outcomes long before the truth is ever established.
Criminal and civil timescales will never truly align, driven as they are by fundamentally different goals and mandates. Yet, it is within this permanent friction where criminal procedure meets civil urgency that the balance of power is shifted and families continue to be reshaped in ways the law never intended.
Douglas McConnell is a Partner, Duncan & McConnell