–Agnes Lux, Associate Professor, ELTE University, Faculty of Social Sciences and Centre for Sciences Institute for Legal Studies, and Judit Zeller, Associate Professor, Faculty of Law, University of Pécs (Department of Constitutional Law)
In recent years, children’s rights have received heightened attention in Hungary. Child protection has become a ‘hot potato’ and became one of the reasons that led to the success of Péter Magyar at the general election held in Hungary in April 2026 and brought him a landslide victory over Viktor Orbán, ending the latter’s 16-years in government.
Although both the Fundamental Law of 2011 and the Child Protection Act of 1997 were subject to significant politically motivated amendments as early as 2020, children and child protection only moved to the center of public and professional discourse as the result of the so-called “pardon scandal” that erupted in 2024—an affair that ultimately led to the resignation of the President of the Republic, Katalin Novák, and partly to Orbán’s defeat. The ‘pardon case’—where the President of the Republic pardoned a criminal, who was convicted for assisting in covering up his superior’s case on sexual abuse against children by coercing one of the victims to withdraw their testimony, received public backing from Zoltán Balog, a senior political figure, church leader, and former minister in Prime Minister Orbán’s government — attracted particular interest because it offered insight into the everyday functioning of a sector—residential child care institutions—that remained largely unknown to the broader public. At the same time, it drew attention to the operation of the entire child protection institutional framework. This quickly led to a more general question: what is the content of children’s right to protection, and what is required for this right to be effectively realized?
The positions emerging in the public discourse, however, extended beyond narrowly defined legal issues and shifted toward political interpretations of the concept of the “child” and the child’s “best interests.” This development aligned with a political approach that treated the child as a mere “public good” and equated the child’s interests with the state’s current objectives. Such a perspective, however, may produce a clear tension with the modern paradigm of children’s rights, which recognizes the child as an autonomous rights-holder.
The aim of our post is to argue that children’s rights cannot be reduced to mere political rhetoric. A country’s constitution can adequately guarantee children’s rights only if the constitutional framework is based on the holistic approach embodied in the Convention on the Rights of the Child. Rather than forming a hierarchy, children’s rights are interdependent and mutually reinforcing.
Children’s Rights in the Fundamental Law
The political and social significance of the issue—alongside its instability—is reflected in the turbulent history of Article XVI—declaring the rights of the child—of the Fundamental Law over the past five years. This provision was amended by Parliament in both 2020 and 2025. Recurring amendments officially aimed at providing a higher standard for child protection—an aim questionable in itself, because of the underlying failed developmental-psychological and sociological approaches. The reasons behind the official explanation, however, clearly aligned with the political agenda of the Government.
According to the original 2012 text: “Every child shall have the right to the protection and care necessary for his or her proper physical, mental and moral development.”
The 2020 Amendment supplemented this with a contemporary political objective:
“Hungary shall protect children’s right to an identity corresponding to their sex at birth, and shall ensure upbringing in accordance with the values based on Hungary’s constitutional identity and Christian culture.”
The most recent 2025 version added a further sentence after the opening proclamation, according to which: “Every child shall have the right to the protection and care necessary for his or her proper physical, mental and moral development. This right—except for the right to life—shall prevail over all other fundamental rights.”
Such frequent, and rather hypocritical amendments especially in light of the pardon-case have, despite their nominally rights-protective aim, primarily become tools of political communication. Consequently, it is difficult to analyze Article XVI solely on the basis of fundamental rights, as its interpretation is closely intertwined with underlying political narratives.
This brief analysis nevertheless seeks to demonstrate that the latest transformation of Article XVI establishes a rigid hierarchy among fundamental rights—one that is theoretically unjustifiable.
Why Should (Almost) All Fundamental Rights Not Be Subordinated to Children’s Rights?
This question can be answered from both a general fundamental rights perspective and a child rights–specific viewpoint.
From a general perspective, any hierarchy among fundamental rights in Hungarian law can at most be attributed to “historical accidents.”[1] An analysis of Hungarian Constitutional Court’s case law shows that such hierarchies have never served as the sole basis for resolving conflicts between rights. No decision has relied exclusively on hierarchical reasoning.[2] (This remains true despite the fact that we are, of course, aware of decisions in which the Hungarian Constitutional Court has emphasized the particular importance of certain fundamental rights—such as human dignity, freedom of expression, or freedom of religion.)[3] Instead, conflicts have consistently been resolved through balancing, guided by the principles of necessity and proportionality.
It follows that elevating a single right—the child’s right to protection and care—to a position of absolute priority is entirely foreign to the established and successful method of resolving fundamental rights conflicts in both international and domestic constitutional grounds, including the consistent case law of the Hungarian Constitutional Court.
From a child rights perspective, such a hierarchy also contradicts the spirit of the UN Convention on the Rights of the Child (UN CRC), which has been in force in Hungary since 1991. The UN CRC requires following the ’whole child approach” and a complex, context-dependent interpretation of children’s rights, including the principle of the best interests of the child.[4]
The content of the right to protection and care is itself open to interpretation: it may be understood narrowly as physical and moral protection, or more broadly to include rights related to development, participation, expression, and autonomy.[5] Accordingly, children’s rights should not be conceived hierarchically but rather assessed holistically, with the child’s best interests as the guiding principle.
A Comparative Perspective
From a comparative constitutional perspective, Hungary occupies a distinctive position in Europe. While constitutions across Central and Eastern Europe generally recognize the protection of children, they incorporate children’s rights into the system of fundamental rights with varying depth and structure.
Hungary’s approach stands out in that Article XVI elevates the child’s right to protection and care to a particularly prominent constitutional value. Most European constitutions, by contrast, do not establish explicit or implicit hierarchies among rights but instead favor balanced, case-by-case approaches.
How Should Children’s Rights Be Interpreted and Regulated?
International standards—especially the UN CRC—place the principle of the child’s best interests at the center. This principle functions as a horizontal, guiding standard that permeates all decisions affecting children. It requires a case-by-case assessment that considers the child’s individual needs and circumstances.
Similarly, the 2014 report of the Council of Europe’s Venice Commission emphasizes that constitutional protection of children’s rights must be holistic. This includes not only declarative norms but also institutional guarantees and coherent interpretative practices.
The report stresses that children are not merely passive recipients of protection but independent rights-holders whose rights form an integral part of the fundamental rights system. It also highlights that the “best interests” principle must not be used to justify political or ideological objectives. Furthermore, it underlines the importance of legal clarity, legal certainty, and institutional safeguards, such as independent children’s rights ombudsman mechanisms.
Evaluation of the Hungarian Framework
Although the Hungarian Fundamental Law formally reflects the importance of child protection, it does not fully meet the requirements of a holistic approach. The wording of the relevant provisions is often broad and open to interpretation, raising concerns regarding legal clarity. Moreover, the potential hierarchical structuring of children’s rights conflicts with international and European trends emphasizing balance and contextual assessment.
Overall, while Hungarian constitutional regulation appears to align formally with international standards, its substantive and structural characteristics—particularly the reconfiguration of the relationship between fundamental rights—warrant critical scrutiny.
Child-related constitutional amendments under the governments of Viktor Orbán reflect a broader ideological approach that combines conservative family values, demographic policy, and political sovereignty. These changes emphasize the protection of children within a framework of “traditional” family structures and link children’s rights to concepts such as identity based on sex at birth and upbringing aligned with national cultural and Christian norms. At the same time, “child protection” is often framed not only as safeguarding against abuse or neglect, but also as shielding minors from perceived ideological influences, particularly in relation to LGBTQ+ issues. This approach positions child rights within a wider political narrative promoted by Fidesz, where constitutional provisions serve to entrench long-term values and assert national autonomy vis-à-vis international human rights standards.
Constitutionalization of Children’s Rights
The “constitutionalization” of children’s rights—often through references to instruments such as the UN CRC—is an emerging and increasingly dominant method of incorporating children’s rights into national legal systems.[6] It signals a commitment to recognizing children’s rights at the highest legal level.
Such incorporation strengthens the protection of children’s rights by embedding them within the constitutional order, making them more resistant to erosion and giving them precedence over conflicting statutory provisions.
However, 35 years after the adoption of the UN CRC, constitutional protections of children’s rights show significant diversity and ongoing evolution. The strongest alignment with international standards is found in constitutions that reflect the indivisibility of rights, incorporate the core principles of the UN CRC, and recognize children as rights-holders capable of enforcing their rights against the state.
By contrast, constitutions that merely provide general human rights protection and frame children’s needs primarily as matters of “protection” rather than enforceable rights offer only limited avenues for effective rights enforcement.[7]
Final Remarks
When constitutional amendments are made repeatedly within a short period—disregarding principles of legal clarity and certainty, and instrumentalizing child protection for political purposes—they not only conflict with international obligations under the UN CRC, but also undermine both the moral and legal standards of child protection itself.
In a future constitutional reform, children’s rights should be reframed in a child-centered, rights-based and holistic approach. This would mean explicitly guaranteeing the best interests of the child, the right to be heard, and strong protections against all forms of harm. The regulation should align closely with the UN CRC’s whole child approach and avoid embedding narrow ideological definitions of family or identity, focusing instead on the well-being, dignity, and development of every child.
Suggested citation: Agnes Lux and Judit Zeller, (Un)constitutional Child Protection? The Protection of Children in Light of Hungarian Constitutional Provisions, Int’l J. Const. L. Blog, Jul. 23, 2026, at: http://www.iconnectblog.com/unconstitutional-child-protection-the-protection-of-children-in-light-of-hungarian-constitutional-provisions/
[1] László, Sólyom: Hierarchy of norms in the constitution (’Normahierarchia az alkotmányban’). Közjogi Szemle 2014/1. 1.
[2] Gábor Attila, Tóth: Beyond the text – Thesis about the Hungarian constitution. (’Túl a szövegen – Értekezés a magyar alkotmányról’). Osiris, 2009.
[3] Decision of the Constitutional Court No. 23/1990. (X. 31.), Decision No. 30/1992. (V. 26.), Decision No. 48/1998. (XI. 3.), Decision No. 4/1993. (II. 2.).
[4] The UN CRC Committee’s General Comment No. 5 (2003) on the general measures of implementation of the Convention on the Rights of the Child, para. 12; and No. 12 (2009) on the right of the child to be heard, para. 2. and the UN CRC Committee’s General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1).
[5] Tobin, John: The UN Convention on the Rights of the Child: A Commentary, OUP, 2019.
[6] Council of Europe, Parliamentary Assembly, Committee on Social Affairs, Health and Sustainable Development, Explanatory memorandum by Rapporteur Mr Preda, Report Doc. 13787 (6 May 2015) (“Explanatory Memorandum by Rapporteur Mr Preda”), para. 13.
[7] Venice Commission (2014), para 139.