A The doctrinal interpretation of imputability

Compared to subjective fault, imputability constitutes a broader and more objective legal concept based on the standard of conduct generally expected in each situation.⁵ Rather than focusing exclusively on the personal capacities or intentions of the individual concerned, the concept establishes a normative benchmark applicable to participants in a legal relationship more generally. Within systems of civil liability, this reflects the gradual objectification of responsibility: the central issue is no longer what may personally be expected from the specific individual, but whether the conduct in question complies with the standard reasonably expected from members of the community under similar circumstances.⁶

Nevertheless, an alternative approach has emerged within Hungarian family law doctrine, according to which family law relationships require the application of a distinct concept of ‘family law imputability.’ Proponents of this view argue that imputability in family law cannot be assessed exclusively on the basis of abstract objective standards, since parental conduct must necessarily be evaluated in light of the parent’s individual personal circumstances and subjective life situation. According to this interpretation, the court should primarily examine what could reasonably be expected from the particular parent involved in the dispute.⁷

149In legal literature, the concepts of subjective fault and imputability are frequently used interchangeably⁸, despite the fact that imputability is conceptually broader than fault. Subjective fault traditionally refers to negligent conduct, whereas imputability represents a partially objectified category of responsibility combining both subjective and objective elements of liability. The distinction is also reflected in the wording of the Bpnt. itself: while the general enforcement mechanism relies on the concept of imputability, Section 22/D (2) explicitly refers to subjective fault, thereby imposing a stricter requirement in that particular context.

In my view, the recognition of an autonomous concept of ‘family law imputability’ is not supported by the current legal framework. Following the entry into force of the new Civil Code, the previously separate family law terminology became integrated into the general system of Hungarian private law, resulting in a more unified conceptual structure. Consequently, the introduction of a distinct family law category of imputability would risk undermining doctrinal coherence and could contribute to inconsistent judicial practice.

Nor does it appear justified to conflate the concepts of fault, imputability, and culpability. Such conceptual uncertainty would inevitably generate interpretative difficulties in judicial practice, particularly in highly conflictual family disputes where the predictability and consistency of judicial reasoning are of particular importance. In my assessment, imputability should primarily be understood as an objective standard 150based on generally expected conduct, even within family law relationships.

Although it may be criticized from a codification perspective that procedural legislation employs a substantive private law concept, the teleological interpretation of the legislation nevertheless suggests that the legislator intended courts to apply the general private law standard of imputability established by the Civil Code. Accordingly, the standard contained in Section 1:4 (1) of the Civil Code – namely the requirement of generally expected conduct – should remain the primary point of reference in enforcement proceedings.

At the same time, the protection of the child’s best interests may justify a limited shift towards a more subjective assessment in exceptional cases. However, this does not establish the existence of a separate family law liability regime; rather, it reflects the necessary flexibility inherent in family law adjudication. The dual structure of the regulation therefore appears to embody a gradual intervention model aimed simultaneously at identifying unlawful obstruction, encouraging voluntary compliance, and avoiding excessively subjective judicial discretion.

The doctrinal analysis thus suggests that the current legal framework does not require the recognition of an autonomous concept of ‘family law imputability.’ The general objective standard of imputability appears capable of ensuring a relatively predictable and coherent assessment of parental conduct in enforcement proceedings. At the same time, the practical application of the concept remains subject to significant structural and functional limitations, particularly in recurrent high-conflict disputes.

B imputability in judicial practice

The court file research conducted for this study indicates that, in practice, courts consistently interpret imputability on the basis of the standard of conduct generally expected in the given situation rather than according to the parties’ subjective perceptions of fairness or their personal interpretation of the conflict. Particularly in recurrent enforcement proceedings, courts deliberately narrow the scope of their examination to the question of whether the failure of contact resulted from circumstances attributable to the respondent parent.

In a considerable number of cases, the parties attempted to explain the failure of contact by referring to emotional tensions, communication difficulties, or broader personality conflicts between the parents. However, courts generally refused to treat such circumstances in themselves as sufficient grounds for establishing imputability. Instead, judicial reasoning focused on whether the specific circumstance that directly resulted in the failure of contact fell within the respondent’s sphere of control and whether the respondent fulfilled the duties of cooperation and, where applicable, the obligation to offer substitute contact.

The examined cases also revealed situations in which contact formally took place – for example through brief telephone conversations – while the applicant nevertheless challenged the adequacy or quality of the interaction. In such cases, courts consistently rejected enforcement requests on the grounds that the contact itself had technically occurred, and that the shorter duration of communication did not in itself render the respondent’s conduct imputable, particularly where the child’s age or limited attention span reasonably explained the circumstances.

By contrast, courts were willing to establish imputability in cases where the formally realized contact was accompanied by parental behaviour capable of creating negative emotional 152associations in the child towards the non-resident parent. In several cases, courts found that the resident parent failed to prepare the child adequately for contact and thereby indirectly undermined the effectiveness of the relationship. One example concerned situations in which telephone contact was intentionally scheduled during the child’s evening meal, causing the child to associate communication with the non-resident parent with the unpleasant interruption of dinner.

According to judicial reasoning, such conduct constitutes a violation of the parental duty of cooperation even where contact formally occurs, since it may indirectly discourage the child from maintaining a meaningful relationship with the other parent. In this respect, the courts increasingly recognize that obstruction of contact may arise not only through explicit refusal but also through indirect behavioural patterns capable of undermining the child’s emotional openness towards the non-resident parent.

Judicial practice further shows that courts attach particular significance to the parental duty of cooperation established under Section 4:173 of the Civil Code. Several decisions emphasized that flexibility, constructive communication, and mutual accommodation are essential conditions for the successful exercise of contact rights. Courts repeatedly stressed that the resident parent bears responsibility for preparing the child both physically and emotionally for contact, while the non-resident parent must also respect the stability and private life of the resident household and may not exercise contact rights contrary to the child’s interests.⁹

At the same time, courts refused to establish imputability in cases where the failure of contact resulted from objectively 153foreseeable and adequately communicated circumstances, such as sudden illness, unexpected weather conditions, or pre-arranged school activities, provided that the respondent parent made genuine efforts to reschedule or compensate for the missed contact. In these situations, courts explicitly evaluated the parties’ willingness to cooperate and considered flexibility itself to be evidence against imputability.

The empirical findings nevertheless indicate that the current enforcement framework encounters significant limitations in recurrent high-conflict cases. In proceedings involving so-called ‘vexatious’ or chronically litigating parents, courts frequently became trapped in repetitive procedural cycles in which enforcement was either repeatedly ordered or repeatedly refused without addressing the deeper structural causes of the conflict. In many of these cases, little effort was made to employ alternative conflict-management mechanisms such as supervised contact, mediation, or the involvement of child welfare services.

Consequently, enforcement proceedings risk becoming procedural extensions of ongoing parental conflict rather than effective instruments for protecting the child’s long-term interests. In such cases, the examination of imputability is often reduced to a narrowly technical inquiry focused exclusively on whether contact formally occurred and whether the failure fell within the respondent’s sphere of control. Although this approach remains doctrinally coherent and procedurally defensible, it may simultaneously obscure the broader question of whether the proceedings genuinely contribute to the preservation of stable and meaningful parent–child relationships.

The examined judicial practice therefore reveals a certain tension inherent in the current system. On the one hand, courts generally apply the concept of imputability in a consistent and doctrinally coherent manner based on the objective standard of generally expected conduct. On the other hand, the enforcement 154mechanism itself appears only partially capable of addressing the structural realities of persistent family conflict, particularly in cases characterized by long-term parental hostility and repeated litigation.

In this respect, the practical application of imputability also illustrates a broader limitation of coercive family law enforcement. While the legal framework may be suitable for identifying and sanctioning individual violations, it is considerably less effective in resolving the deeper relational dynamics that repeatedly generate enforcement disputes.

A New Dimensions of the best interests of the child during the pandemic

Shortly after the entry into force of the Bpnt., the Hungarian Government declared a state of danger on 11 March 2020 in response to the COVID-19 pandemic. Subsequently, restrictive measures were introduced, including limitations on movement and curfews. Although the exercise of parental rights and obligations formally constituted a legitimate reason for leaving one’s residence, the pandemic nevertheless created substantial uncertainty regarding the practical exercise of contact rights.

Court file research revealed that resident parents frequently relied on the risks associated with the pandemic as justification for refusing to transfer the child for contact. Judicial practice soon became divided concerning the question of whether reference to the pandemic itself could exclude imputability. According to the majority approach, the mere existence of the pandemic was not in itself sufficient to justify the failure of contact; rather, additional specific circumstances had to be demonstrated in order to exempt the respondent parent from responsibility.

During the examined period, courts accepted the respondent’s reliance on the pandemic in situations where the applicant parent’s occupation involved particularly high levels of exposure to infection. Typical examples included applicants working as international truck drivers who regularly crossed national borders, as well as hospital physicians who continued to treat patients during the pandemic. In such cases the courts regarded these circumstances as sufficiently exceptional to justify the temporary restriction of personal contact without establishing the resident parent’s imputability.

156At the same time, a minority position within judicial practice accepted the pandemic itself as an independent justification for limiting contact. Similar views were reflected in professional recommendations issued during the period, which suggested that personal contact could temporarily be restricted where necessary to protect the child’s health, provided that alternative forms of communication remained available.¹⁰

In my assessment, both approaches rested on rational considerations, yet neither fully addressed the long-term consequences of prolonged separation between the child and the non-resident parent. Regardless of whether the failure of contact could formally be regarded as imputable, many children were unable to maintain personal relationships with the non-resident parent for extended periods due to circumstances entirely beyond the control of either party.

Particularly problematic were cases involving parents employed in socially essential professions, such as healthcare workers or transport employees. It would clearly have been unreasonable to expect such individuals to abandon their professions or livelihoods in order to preserve ordinary contact arrangements during the pandemic. Nevertheless, the legal framework provided no effective mechanism for compensating lost contact once the restrictions had been lifted.

The pandemic therefore revealed a significant limitation of the existing enforcement model. Judicial examination focused primarily on whether the failure of contact could formally be attributed to one of the parties, while considerably less attention was devoted to the actual consequences of prolonged separation for the child’s emotional well-being and family relationships.

157In this respect, the pandemic highlighted that the best interests of the child cannot be reduced exclusively to the physical protection of health. Excessively isolationist approaches may also negatively affect the child’s emotional development and long-term relationship with the non-resident parent. Consequently, the complete suspension of personal contact cannot automatically be regarded as serving the child’s best interests.

The experience of the pandemic further demonstrated that the effectiveness of contact arrangements in extraordinary situations depends less on coercive legal enforcement than on the parents’ capacity for cooperation, flexibility, and responsible decision-making. In this sense, the pandemic exposed not only practical enforcement difficulties but also the inherent limits of state intervention in highly sensitive family relationships.

From a policy perspective, the pandemic experience also suggests the need for future compensatory mechanisms capable of addressing situations in which contact fails for objectively justifiable reasons without being attributable to either parent. In exceptional circumstances of this kind, the preservation of the parent–child relationship may require restorative rather than purely sanction-oriented legal solutions.¹¹

B Constitutional balancing during the pandemic: the best interests of the child in the Constitutional court’s COVID–19 jurisprudence

The judicial practice that emerged during the pandemic also raised significant constitutional questions, since restrictions 158affecting contact rights inevitably interfered with the right to respect for private and family life, as well as with the fundamental rights of both the child and the non-resident parent. In this context, the jurisprudence of the Hungarian Constitutional Court (hereinafter: cc) acquired particular importance by providing guidance on the constitutional limits of emergency measures and the standards governing restrictions of fundamental rights during the state of danger.

One of the Constitutional Court’s most important statements¹² concerning the constitutional implications of the pandemic. The Court emphasized that the existence of a state of danger could not automatically justify the general restriction of constitutionally protected rights, including the right to family life. According to the Court, limitations affecting fundamental rights remain subject to the requirements of necessity and proportionality even during extraordinary legal situations. Consequently, reliance on the pandemic as a general justification could not exempt courts from conducting an individualized assessment of the specific circumstances of each case.

This reasoning possesses particular significance in contact enforcement proceedings because it excludes the automatic suspension of personal contact based solely on preventive considerations. Instead, the Constitutional Court’s approach requires a case-by-case balancing exercise in which courts must evaluate both the concrete health risks involved and the potential long-term consequences of restricting the parent–child relationship.

Another Constitutional Court’s decision¹³ further refined this proportionality-based approach. Although the Constitutional Court acknowledged that the protection of public health constituted a legitimate constitutional objective, it 159simultaneously stressed that this aim could not override individual fundamental rights without limitation. The Court held that any restriction affecting family life must be suitable for achieving the intended objective and that less restrictive alternatives must also be considered wherever possible. Within the context of contact enforcement proceedings, this reasoning reinforced the idea that the pandemic alone could not automatically justify obstruction of contact in the absence of a genuinely proportionate assessment.

The Constitutional Court addressed these concerns even more explicitly and the Court criticized the assumption that a parent necessarily acts responsibly by reducing personal contact solely to minimize the risk of infection. According to the Court, such reasoning risks emptying contact rights of their substantive content and may ultimately lead to the emotional alienation of the child from the non-resident parent if prolonged over time.¹⁴

The Constitutional Court also emphasized the constitutional significance of time in family law disputes. The Court observed that procedural delays may themselves amount to violations of fundamental rights in legal relationships where the passage of time produces irreversible consequences. In matters involving children, time cannot be regarded as a neutral procedural factor because prolonged disruption of personal relationships may permanently affect the child’s emotional development and family bonds.¹⁵

Finally, the Court clarified more generally that the state of danger did not create an ‘extra-constitutional’ legal order in which fundamental rights protections could simply be suspended. The Court reaffirmed the active responsibility of ordinary courts to protect constitutional rights even during 160extraordinary legal situations, particularly in proceedings directly affecting family life and parent–child relationships.¹⁶

Taken together, the Constitutional Court’s pandemic-related jurisprudence indicates that the best interests of the child cannot be interpreted exclusively through the lens of public health protection. Rather, the child’s interests require a nuanced balancing process capable of considering both physical safety and the preservation of meaningful family relationships. In this respect, the pandemic highlighted the constitutional dimension of contact enforcement proceedings and reinforced the necessity of individualized judicial assessment in cases involving competing fundamental rights.

The pandemic also exposed the lack of established judicial practice following the transfer of enforcement jurisdiction to the courts in 2020. Judges were required to interpret an entirely new procedural framework under unprecedented social conditions and in the absence of settled doctrinal guidance. Unsurprisingly, this situation produced divergent judicial approaches and significant uncertainty concerning the interpretation of imputability during extraordinary circumstances.¹⁷

Academic commentary¹⁸ similarly emphasized that the pandemic revealed the vulnerability of contact rights during periods of social crisis. Orsolya Szeibert pointed out that the legal system had not been adequately prepared for situations in which contact became impossible for extended periods due 161to objective external circumstances without fault on either side. The increasing reliance on electronic forms of communication partially mitigated these difficulties, yet such alternatives could not fully replace personal contact between the child and the non-resident parent.

Ultimately, the constitutional and judicial experience of the pandemic suggests that future regulation should incorporate not only coercive enforcement mechanisms but also restorative and compensatory solutions capable of preserving parent–child relationships in exceptional circumstances where ordinary contact arrangements cannot safely be maintained.