Can You Bring an Institutional Abuse Claim If You Do Not Know the Perpetrator’s Name?

A recent Victorian Court of Appeal decision confirms that survivors of historical institutional abuse may still be able to bring a claim even if they cannot identify the individual perpetrator by name.

In HM v Sister Mary Monaghan [2026] VSCA 104, the Victorian Court of Appeal dismissed an appeal by the institution from the refusal of a permanent stay, allowing the survivor’s sexual abuse allegations to proceed to trial.

This is a significant decision for people who experienced abuse in orphanages, children’s homes, schools, churches, juvenile detention centres or other institutions, and who remember what happened but do not know, or cannot recall, the full identity of the person responsible.

The decision confirms that an institutional abuse claim may still be able to continue even if the survivor cannot remember, or never knew, the perpetrator’s name.

Key takeaways:

• Not knowing the perpetrator’s name does not automatically stop an institutional abuse claim.
• The Court will consider whether the institution can still fairly respond to the claim using the evidence that remains available.
• Evidence about routines, supervision, access to children, complaints, institutional records, policies and staffing may still be important.
• Each case depends on its own facts, including the nature of the allegations, the available evidence and the extent of any prejudice to the defendant.

Why Missing Names Matter in Historical Abuse Claims

Many survivors of child abuse can recall details about the place, routine, circumstances or physical features of what happened, but cannot identify the perpetrator’s full name, religious order, employer or formal role.

This is especially common in historical abuse cases, where decades may have passed, the survivor was a child at the time, and the institution’s structure may have meant that a child was never told, or could not later remember, the adult’s name.

Defendants may argue that not identifying the perpetrator by name makes the investigation of a claim difficult and therefore makes a fair trial impossible. They may contend that they are prejudiced because they cannot properly investigate the allegation, locate the alleged perpetrator, obtain records, call witnesses, or seek contribution from another organisation that may have been responsible for the perpetrator.

The Court made clear that not knowing the perpetrator’s name is relevant, but it is not automatically fatal. The key question is whether the institution can still receive a fair trial using the evidence that remains available.

What Happened in HM’s Case

HM was a ward of the State of Queensland and lived at Nazareth House in Brisbane as a child between about 1961 and 1967, from about age five to age 11. She alleged that she suffered sexual, physical and psychological abuse while in the care of the Sisters of Nazareth, who operated Nazareth House.

Her sexual abuse allegations concerned three priests whose names she did not know. She described them by their appearance and the circumstances in which she said the abuse occurred. She alleged that, after Mass, nuns took her to the nuns’ quarters and left her alone with the priest who had conducted Mass.

The defendant sought a permanent stay of the sexual abuse allegations. In practical terms, this was an application to stop that part of the case from proceeding. The defendant argued that the passage of time, missing records, unavailable witnesses and unidentified priests meant that it could not have a fair trial.

What the Court Decided

The Victorian Court of Appeal dismissed the appeal and upheld the refusal of a permanent stay. A permanent stay is an exceptional remedy and is generally treated as a last resort. The Court accepted that the inability to name the alleged priests created forensic difficulties for the defendant but held that those difficulties did not necessarily make the trial unfair.

The Court also recognised that historical abuse claims commonly involve incomplete records, unavailable witnesses and faded memories. Those matters may be relevant to the assessment of evidence at trial, but they do not automatically justify stopping a claim before trial.

The Court considered that the defendant still had material available to respond to the claim, including evidence about supervision, access to the nuns’ quarters and whether children were ever left alone with priests. The ordinary trial process, including cross-examination and judicial assessment of evidentiary gaps, could address the forensic issues.

Importantly, the Court did not decide whether HM’s allegations were true or whether the defendant was liable. It decided only that the defendant had not shown the kind of exceptional prejudice required for the sexual abuse allegations to be permanently stayed.

Why Claims Against Institutions Are Different

HM’s case was a claim against the institution responsible for her care. She alleged that the institution failed to protect her from a foreseeable risk of abuse while she was living there as a child.

That means the absence of a perpetrator’s name does not necessarily prevent the Court from deciding the case. A survivor may still be able to rely on evidence about routines, supervision, access to children, complaints systems, policies, staffing and what the institution knew or should have known about risk.

The Court emphasised that a trial does not have to be perfect to be fair. Judges can take account of evidentiary gaps, delay and prejudice when assessing the evidence.

What This Means for Survivors

This decision confirms that survivors should not assume they have no claim simply because they do not know the perpetrator’s name. In institutional abuse cases, the focus may be on the institution’s responsibility to protect children in its care, not only on the identity of the individual abuser.

A claim may still be possible if a survivor can describe the institution, time period, routines, locations, adult roles, patterns of access or circumstances in which the abuse occurred, even if they cannot identify the person responsible by name.

The decision also shows that institutions face a high threshold if they ask a court to stop a claim. They must show more than the ordinary difficulties caused by the passage of time. They must show that the trial would be unfair in a fundamental way.

However, the decision does not mean that every claim involving an unidentified perpetrator will proceed. Each case depends on its own facts, including the available records, witnesses, institutional history, pleaded allegations and the degree of prejudice to the defendant. The decision confirms that inability to name the perpetrator is not automatically fatal; it does not remove the plaintiff’s obligation to prove the claim at trial.

However, for survivors of institutional abuse, this case is a reminder that not knowing the perpetrator’s name is not necessarily the end of the road. Where a claim is directed at an institution’s failure to protect a child, the Court may still allow the case to proceed if there is enough material for the institution to receive a fair trial.

If you experienced abuse in an institutional setting, you may still have legal options even if many years have passed or you do not know the name of the person responsible. Chamberlains Law Firm can help you understand your rights, your options and the steps available to you